(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "Meetings of the American Indian Policy Review Commission"

[COMMITTEE PRINT] 



U.S. SENATE 
SELECT COMMITTEE ON INDIAN AFFAIRS 



MEETINGS OF THE AMERICAN 
INDIAN POLICY REVIEW COMMISSION 



NOVEMBER 19, 20, 21, 22, AND 23, 1976 



WASHINGTON, D.C. 




Printed for the use of the 
U.S. Senate Select Committee on Indian Affairs 



[COMMITTEE PRINT] 



U.S. SEXATE 
SELECT COMMITTEE OX INDIAN AFFAIRS 



MEETINGS OF THE AMERICAN 
INDIAN POLICY REVIEW COMMISSION 



NOVEMBER 19, 20, 21, 22, AND 23, 1976 



WASHINGTON, D.C. 



Volume 4 




Printed for the use of the 
U.S. Senate Select Committee on Indian Affairs 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1977 



82-749 



SELECT COMMITTEE ON INDIAN AFFAIRS 

[Created by S. Res. 4, 95th Cong.] 

JAMES ABOUREZK, South Dakota, Chairman 

HOWARD METZENBAUM, Ohio DEWEY F. BARTLETT, Oklahoma 

JOHN MELCHER, Montana MARK O. HATFIELD, Oregon 

Ernest L. Stevens, Staff Director 

(II) 



CONTENTS 



Meetings of the American Indian Policy Review Commission 

Page 

November 19, 1976 1 

November 20, 1976 71 

November 21, 1976 135 

November 22, 1976 185 

November 23, 1976 239 

(Hi) 



Digitized 


by the Internet Archive 






i 


n2013 









http://archive.org/details/mamericOOunit 



MEETINGS OF THE 
AMERICAN INDIAN POLICY REVIEW COMMISSION 



NOVEMBER 19, 1976 

Rayburx Building, 

Washington, D.C. 

Present: Senator James Abourezk, chairman; Congressman Lloyd 
Meeds, vice chairman; Senator Lee Metcalf, Commissioner Ada Deer, 
Commissioner John Borbridge, Commissioner Adolph L. Dial, 
Commissioner Louis R. Bruce, and Commissioner Jake Whitecrow. 

Staff Director: Air. Ernie Stevens. 

Administrative Assistant: Ms. Ernie Ducheneaux. 

Commission staff: Paul Alexander, Peter Taylor, Ray Coetting, 
Donald Wharton, Charles Wilkinson, D'Arcy McNickle, Gil Hall, and. 
Pat Zell. 



Chairman Abourezk. The meeting of the American Indian Policy 
Review Commission will come to order. 

The first thing that I would like to do, I think while we have had a 
lot of problems, many difficulties in the past couple of years since this 
Commission has been operating, we have been able to overcome most 
of them; and to get us over the rest of the way, I want to ask at the 
suggestion of Commissioner Jake Whitecrow, that we get an invocation 
from Rev. Phil Beaumont, and if you would like, just stand where you 
are and give us a little opening prayer. W T e would sure appreciate it. 

Reverend Beaumoxt. If I may be here for this fine country of 
our's, God has given me a language which has come down to this 
moment and I would like to revert to that language as I do in everyday 
and offer a prayer for the Commission, for the fine people of our 
country, for the leaders and in this language that I know. 

[Whereupon the Reverend Beaumont offered a prayer in his native 
dialect.] 

Chairman Abourezk. Thank you verv much, Reverend Beaumont. 
Is that the Crow Tribe? 
Reverend Beaumoxt. Yes. 
Chairman Abourezk. Thank you. 

I would like to ask the clerk to call the roll to establish the presence 
of a quorum of the Commission. 

Ms. Ducheneaux. Commissioner Borbridge? 

Mr. Borbridge. Present. 

Ms. Ducheneaux. Commissioner Bruce? 

Mr. Bruce. Present. 

Ms. Ducheneaux. Commissioner Deer? 

Ms. Deer. Present. 

(1) 



2 



Ms. Ducheneaux. Commissioner Dial? 
Mr. Dial. Present. 

Ms. Ducheneaux. Senator Hatfield? [No response.] 
Congressman Meeds? 
Mr. Meeds. Here. 

Ms. Ducheneaux. Senator Metcalf? [No response.] 
Congressman Sfc^iger? [No response.] 
Commissioner White-crow? 
Mr. Whitecrow. Here. 

Ms. Ducheneaux. Congressman Yates? [No response.] 

Senator Abourezk? 

Chairman Abourezk. Here. 

How man}' members present? 

Ms. Ducheneaux. Seven. 

Chairman Abourezk. Seven. 

Is that a quorum? 

Ms. Ducheneaux. Yes. 

Chairman Abourezk. All right. 

A quorum is present, seven members of the Commission are 
present. 

I wanted to give just a very brief opening statement, and I will 
ask other members if they have anything that they would like to 
say; but I am going to ask Ernie Stevens, the director of the Com- 
mission, to outline the procedures in just a moment. 

But, I want to say that we have come to the end now, or ver} r near 
the end, of a very difficult — at times — 2-year period whereas we 
have advertised this as the only time in the history of this country 
that the Indian people themselves have really written their own 
policy and I think that is what it is going to be. 

The staff has not been entirely Indian, it has been overwhelmingly 
Indian though, and the Commission members, especially the Indian 
members have very faithfully attended every meeting. 

They have a much better attendance record than the non-Indian 
Commission members and the controversies that have surrounded 
this Commission were to be expected; because anyone who looks 
through the past history of Indian politics and has seen the contro- 
vers}^ embroiled through the last century or so, you would have to 
expect that we would be controversial. 

I have to say this, that I think everybody- has tried to the best of 
their ability. I don't know of an}~body who has not tried to the best 
of their ability, and we just have a short time more to go, a month 
or two, before we finish this process. 

And, I have to, first of all, before we begin this markup session, 
express my thanks to everyone who has been involved. 

Lloyd Meeds had a very tough election fight. He doesn't know the 
outcome for sure yet, but I am confident he is going to win it. And, 
it's been especially tough on him, who has had more pressures on him 
than any of the rest of us, and I have to say that I sincere^ appreciate 
his position and appreciate the work that he has done. His attendance 
has been very dedicated and faithful, and the amount of work and 
contribution he has made, the ideas, have all been invaluable to this 
commission. 



3 



So far as the outcome, the results of this final report and recom- 
mendations are concerned, we are all hopeful that every recommenda- 
tion will he implemented into law, either by Executive order or by 
legislation. 

Now, I have to say that I had indications from Carter's people 
during the campaign that they wore willing to adopt the interim 
report we issued on the BIA management study. They would like the 
reorganization aspect of it and I think that we can most — I am not 
speaking for Carter. I am just saying from the talk I had with his 
people during the campaign that they arc interested in adopting at 
least that portion of it. 

So, if that happens, we have at least fulfilled a great part of our 
mission. 

Insofar as the rest of it is concerned, it depends on the quality and 
the nature of the recommendations and when that happens, we're 
going to know how well we have done our work. 

And, we are hopeful that in the end, and I think there are signs of it, 
that the Indian community will somehow come together and unite 
even though they may not agree with all the recommendations of this 
report. 

You have to keep in mind it is being written by and large by the 
Indian community and we hope that the Indian community will be 
able to unite, because there may not be another chance for quite 
sometime similar to this one. 

So, again, I would like to express my thanks to the commissioners, 
to everybody who has w T orked on this, to those people who have 
supported it. and I suppose I should even thank those people who 
have opposed us, because they have kind of kept us on our toes and 
made us, I think, do our jobs better. 

I woidd like to ask the vice chairman, Congressman Meeds, if he 
would like to say anything. 

Congressman Meeds. If I can get myself from behind this pile of 
books and work I would just like, Mr. Chairman, to compliment you 
on your faithful attendance and conduct at these commission meet- 
ings. Also, I would like to compliment all of the other commissioners, 
particularly the Indian commissioners who have been ver} r faithful 
in their attendance ; and to all of those people who worked so diligently 
on these task forces. Some of them have, I think, turned in excellent 
work, others work is not what I would consider excellent, but they 
are in a better position to understand some of the things that they 
were doing than I am. 

I am not going to pass any judgment on any of the work until such 
time as we have had an opportunity to discuss it here. But, I think 
it is sufficient to say that everyone has worked very hard. Everyone has 
worked diligently and has turned in work which I think does credit to 
the individuals and to the original concept of this commission. 

And , I am sure that we are going to have a good result. 

Thank you, Mr. Chairman. 

Chairman Abourezk. Thank you. 

Does anybody else have anything they would like to say before we 
get underway? 

Commissioner Jake Whitecrow? 

Mr. Whitecrow. Thank you, Mr. Chairman. 



1 



On behalf of myself as one individual commissioner serving on this 
Commission, I want to take this opportunity in initiation of our 
session here to review all of the various reports that have been sub- 
mitted by the various task forces, that this particular day is in my 
opinion a landmark day in the history of the American Indian. 

It has been a privilege to have served on this Commission and 
certainly, I am not indicating that I feel that our work is done 

I think our work is just beginning, even after we complete our final 
markup and the presentation of our report to the Congress. 

I want to also take this opportunity to thanking the staff for the 
tremendous amount of hours, tremendous amount of work that has 
gone into this and I don't think we should slide all of our tremendous 
amount of clerical assistance that we have received, all of the fine 
people that have served us well down through this past year and a 
half, presenting us with all of our needed materials and getting out and 
cranking out all of the vast amount of workload that we have received ; 
and imposed upon us this vast amount of reading that has been a 
requirement of serving on this Commission. 

I do feel that this is a beginning, as 1 said, of a tremendous amount 
of work that is coming up into the future. I do not feel that the Indian 
people totally are in a position to accept all of our recommendations 
at the present time. 

I feel that they do need an additional opportunity to look at the 
report that we submit. I feel very definitely and very strongly in the 
fact that we as a commission, these next few days, give strong con- 
sideration of extending for a month or two, our period of submitting 
our final report to the Congress because what we arc doing in effect is 
requesting the Congress of the United States to now lay it on the 
American Indians in such a manner so that we can develop the next 50 
to 100 years of relationships. 

I sincerely feel that in order for the American Indian around the 
Nation to have the opportunity to look at our total report, prior to 
submission, is most important to our work schedule, and I will be 
recommending that we do extend that period of time, whatever it 
might take. 

I am knowledgeable about the fact that it possibly could take an 
amendment to the legislation that established this commission and I 
do feel that it could be extended with any additional cost insofar as 
the budget is concerned. 

Chairman Abourezk. How long did you say, Jake? 

Mr. Whitecrow. I would recommend a minimum of 2 months in 
order that the national Indian organizations around the country and 
that the tribes around the country would have an opportunity to 
review our final report prior to submission, so that when the Indian 
people come before the various committees in Congress, then they will 
have that all together. They will have unity, hopefully, in the support 
of our work. 

Chairman Abourezk. If I can comment. That probably would be 
the most desirable thing to do, but I think in terms of getting it on 
the initial rush of legislation — well, you know how these honeymoon 
periods go with the new President and the Congress. We might have a 
better chance of passing some of these reorganization things at least 
if we get them in right in the beginning. 



5 



And, if we delay too long, 1 wonder if we might not get Left out in 
the cold, because — I'm not predicting this, mind you, but historically, 
any new President has, you know, a 90 or 100 day honeymoon period 
and after that the Congress starts attacking him and he starts attack- 
ing the Congress. 

I know I talked to one Senator from a far Stale who says lie has got 
a press release prepared to attack the Secretary of Agriculture. He has 
just left the name blank, waiting to fill it in, and as soon as he is 
appointed, he is going to attack him. 

So, I don't know how much leeway we've got is what I'm saying; 
but anyhow, I think the suggestion itself, everything else being equal, 
is not a bad one. 

It is just that we might get ourselves in a bind if we do try to do it, 
but it is something we ought to discuss. 

Are there any other statements? If not, I am going to call on the 
staff director, Ernie Stevens, to give us the procedural outline and I 
want to state, as long as we are congratulating each other, that I have 
got to say that most of the credit for the work done on this Com- 
mission and the work yet to be done has to go to Ernie Stevens. 

He is a guy who has been walking a tightrope for probably longer 
than 2 years, but so far as our experience goes, he has been walking the 
Indian Commission tightrope and has done it extremely well. And, 
he has done it through his great talents, his abilities, and just plain 
perseverance and hard work. I have never had to get Ernie's home 
telephone number to talk to him because every time of day or night 
when I wanted to talk to him I just called the office and he is there; 
and I think everybody who deals with him knows that. 

The only thing I don't understand Ernie, you haven't lost any 
weight as a result of all that hard work. What is it? 

Mr. Stevens. I'm a compulsive eater. 

Chairman Abourezk. But I think it should be on the record now 
that Ernie, in my view, has done an excellent, outstanding job. Ernie, 
do you want to go ahead? 

Mr. Stevens. Yes, sir. 

I want to explain how the materials are organized. We have organized 
the work so that the agenda coincides with the tentative final Com- 
mission report outline. 

The addendum, the short one here, is the same outline that was 
tentatively approved for the final Commission report. The large work 
book follows the agenda. It is by chapter. The task force citations 
under the heading "Findings and Recommendations" that read 
T.F. 2/98 mean Task Force 2, page 98. 

We have Commission task force reports here. You have the sum- 
maries on the desk in front of you. That's the other large book. Those 
are summaries with no comment about the task force reports. 

The ta.sk force reports themselves are at each end of the rostrum 
and people assigned to the Commissioners. If a Commissioner wants 
to look at a specific citation, the assigned person will bring thai 
task force report forward. If the citation reads S-28, that means 
Summary, page 28. And S 2/28, would mean Summary Task Force 2, 
page 28. 

You do have the summary book in front of you. The staff prepared 
the subject matter index, cataloged all findings and recommendations 



6 



under appropriate subject headings. But there was so much material 
(you can just see in the summary material; that much documentation 
and some of the resource materials you may need are not right in front 
of you. 

But we have staff people assigned, and they know where to find 
whatever you may need. In a particular case, the law itself, we festve 
the attorneys here who know the subject matter, and if they don't 
know it right off the top, they can have access to it. 

The work book has been developed, based on the organized findings 
and recommendations of the task force report. In addition we have 
also included the special travel reports to the Commission received 
to date. 

As you know, we have received excellent reports from many tribes. 
I can't mention all of them. The Creeks, Northwest Affiliated. I would 
say that one of the questions I had within our own staff was why 
Northwest Affiliated w T as able to deal with issues, conclusions and 
recommendations specifically in a very short timespan, and on the 
other hand, some of our own people had a difficult time doing that. 
Northwest laid them out by the numbers and submitted a beautiful 
report. 

Their report was about that thick. We have 10 or 11 tribal reports. 
One of them being prepared now is the Crow Tribe's report. It is 
being printed right now. Phil Beaumont, the person who opened the 
meeting, is the head of the planning for the Crow Tribe. We were 
glad to receive their report because we have some gaping holes in the 
natural resource parts of our requirements, and hopefully the Crow, 
Standing Rock and some of the other tribes who have land and re- 
sources will be able to help lis out in this area. 

We have developed each chapter with a format which includes a 
background statement first. The background statement is just a 
short summary of the background of the subject matter of the chapter. 
The issue statements then follow- they are the fundamental issues 
related to that subject. 

Then the cataloged findings (arranged for readability) with staff 
comments, as needed, are next. At the end of the section, comments 
are provided as follows: (A) Support and Consensus. Each chapter 
will end with remarks about whether the findings and recommenda- 
tions were supported and wdiether a consensus was reached. There is 
a critique of the findings and recommendations in each section. 

The next categor}^ is "Gaps." This particular area is self-explana- 
tory. 

Next is the Achievement of Goals. This calls for a separate explana- 
tion and I will get to it in a second. 

The staff put together seven major goals, based on the overall 
picture, that it felt should be discussed by the Commission. 

Then, compliance with Public Law 93-580 — A statement of com- 
pliance to the requirements of section 2 of the act, is included. 

We found in most cases there was much overlap. Most parts of the 
act were covered, but there was some question in some cases as to 
the depth of coverage. 

Then there is the Staff Statement. It is a short narrative comment- 
ing on the material provided in each section, from staff perspective. 
Then, there's the final statement under the heading of u Recommended 



7 



Commission Action." We tried very hard to form a consensus of 
what was there. I know I did that with the budget. However, at the 
bottom line, we called them Principles. 

My own feeling is that the Commission may or may not approve 
those principles. The3 r could give them to the staff as kind of a guiding 
tentative principle and the Commission may or may not accept the 
thing. 

I would like to say that I talked to Congressman Yates yesterday. 
First of all, he wanted to be at the next meeting but he did not like 
the date. The other thing was, he said he would appreciate it if we 
wouldn't lock anything at this time. Whatever that means. 

But he is very interested. And of course, Senator Hatfield had an 
operation and Senator Metcalf is just arriving. 

So, this section provides staff recommendations for Commission 
action. In most cases we feel that if the subject is not developed 
adequately the Commission can decide on a set of principles which 
will furnish guidance for further analysis and in some cases, further 
study. 

There is so much material that was not covered. Some of it we can 
retrieve, such as in the case of natural resources. Some of the specific 
things deal with facts and documentation related to economic; 
in the case of land acquisition, in the case of the potential for natural 
resource development and so on. 

We do have that in our files and one of the things that I found in 
the task force presentation is that some of the things that are missing 
we do have on hand, and it only calls for analysis and we can only 
know, over the next month to what extent we could do that. 

But for the most part, the people on our staff have taken a very 
realistic view of what gaps we can cover. But, in any case, that sec- 
tion will state what those gaps are. The material is prepared so that 
we will merely have to amend the workbook after each meeting to 
keep the deliberations and the main source book up-to-date. 

The Secretary has a list of the commissioners, and in the case of a 
vote she will take down the exact language. If there is a difference 
and if there were a vote, we would record the names and which way 
each votes, if you so wish. We have a form for that purpose. 

Chairman Abourezk. In other words, you have one person as- 
signed when we are changing language and so on. One person will be 
in charge of the final copy as we have agreed; is that correct? 

Mr. Stevexs. Yes, sir. 

Chairman Abourezk. Who will do that? 

Mr. Stevexs. Ernie Ducheneaux. 

Chairman Abourezk. Ernie will also record the votes if there are 
rollcalls? 

Mr. Stevexs. Yes, sir. 
Chairman Abourezk. AH right. 

Mr. Stevexs. Some of the page numbers may need to be fixed a 
tittle bit, but each chapter for the most part, is numbered separately, 
because they were being developed independently. 

We will make amendments on the basis of the action you take or 
when we strike or substitute or add on material, we will do that by 
page number. The transcript is being taken. 



8 



However, Ernie is taking this in shorthand and we will be able to, 
within a week, print up page changes, so all that is necessary is to 
change the pages. 

Chairman Abourezk. And you will match it up with the tran- 
script, match up what Ernie had done with the transcript? 

Mr. Stevens. Yes, sir. We will double check it, but we need to 
start early to try to start working on it. 

The first draft will be accomplished. The only other material is 
the actual draft, whatever you decide to start doing with that. You 
know, there are a couple of sections, such as the prolog and D'Arcy 
McNickle's section. D'Arcy has prepared approximately a 117-page 
overview of the development of Indian policy; and it would come down 
to 30 or 35 pages, I believe, printed in the book. 

We feel that in order for people to address the whole subject of 
Indian affairs, one of the first things you have to do is understand the 
genesis and the development of the policy; what took place in history, 
in law, and so on. So, D'Arcy has been commissioned to do that. He 
is here, and that is one of the things that is done because it is a matter 
of histor}- and record. 

It should be emphasized that our documentation, even related to 
the law itself, is voluminous. We could not even summarize adequately 
what we have on hand. We have one of the chief features, I think, 
or one of the things in the coining years will be that we have an 
incredible amount of really beautiful material, and even with the 
task force nine report, which was three volumes — almost all their 
chapters had major points, which are backed up by entire books 
practically, and so 

Chairman Abourezk. I have another question, Ernie. 

I don't know if it was announced to me this morning that our 
counsel Kirke Kickingbird has resigned and is no longer with the 
Commission; is that correct? 

Mr. Stevens. Yes, sir. 

Chairman Abourezk. Is he working as a part-time counsultant 
or anything like that? 

Mr. Stevens. If we can make him, is it possible to have him as 
special counsel? He is in town, and as a matter of fact, he is right over 
there, and he has said he will make the time to fill in whenever we 
need him on some of these things. 

If there is a way we could make him a special counsel on an as- 
needed basis 

Chairman Abourezk. I have one question that concerns proxy 
voting now during these business meetings. I can never remember 
what our rules said about proxy voting. We haven't used them up 
to date, I know, but what is the situation, the situation so far as the 
rules are concerned? 

Well, when you look it up, give us a signal so we can find out. 

Mr. Stevens. Kirke and Max can do that. We asked the different 
offices about proxies. Congressman Yates, at that — you know, he 
would rather do it himself. I was trying to figure out how to say it. 

Chairman Abourezk. Fair enough. 

Mr. Stevens. One of the things that we have, and I think I will 
just state these goals, and I wanted to emphasize and tell people that 
there is a lot of fast growing interest in what we are doing, and most 



9 



of it is positive and even the criticisms are positive in that we get some 
kind of a way to compare the task force reports. 

But our staff would prefer to have bold outlines to certain extents, 
so at least we can know what the ball park policy is that you are de- 
veloping. I would suggest, personally, that possibly a whole session 
later on could be devoted for the specific voting. 

What we need is for staff to develop some broad kinds of materials, 
or the kinds of materials that are really in consensus in some way, 
and they could always be struck or altered as you so wish, but we 
can proceed on that basis. 

We developed some broad goals and they were kind of as a re- 
sult of all the different principles that came through in the 
recommendations. 

Without regard to what I personally feel about it, this is how it 
came out and was rethought. If the chairman so desired, possibly, 
the Commission could discuss these broad goals. If we had them or 
something like them, you know, however you want it, we would have 
something to deal with as a general kind of philosophy. 

These goals are a reaffirmation of commitment on tribal sovereignty 
and the strengthening of tribal government. Two, affirming the per- 
manenc}' of tribal government. That, coincidentally has to do with the 
prolog part, and I didn't develop that prolog further because I felt 
at least for the record the Commission ought to say that, you know, 
that's the kind of thing they wanted. 

The prolog calls for a recognition of the permanency and the right 
of the Indian people to be separate and apart and different from other 
people and that is the gist of it; and if the Commission were to so 
desire, we could continue to develop the prolog along those lines. But 
I think the Commission ought to tell us that. Then we can proceed. 
Third is the reaffirmation of the trust relationship between the 
Federal Government and the tribes, and improvement in the mech- 
anisms for Federal enforcement and protection. The Federal Govern- 
ment in this relationship should be prohibited from unnecessary 
interference with tribal self-government. 

Four, a strong commitment to meet the needs of the tribes for eco- 
nomic development, including a sufficient land base. 

Five, the delivery systems for services to Indian peoples should 
operate effectively, with optimum Indian input, and not exclude 
individual Indians, because of geographical status. 

Six, there should be a strong commitment to upgrade the standard 
of living of Indians to that of the Nation generally. And southern 
tribal existence, based on the maintenance of tribal identity, should 
be the basis for the Federal-Indian relationship. 

Tribes terminated or nonrecognized, meeting such existence criteria 
should be eligible for the Federal recognition and Federal services 
without a diminishment of services or responsibilities to currently 
recognized tribes. 

Mr. Chairman, at this time I would like to recommend that the 
Chairman entertain discussion and possible approval of these goals 
statements or some variation thereof. 

Mr. Paul Alexander is available to summarize how these goals were 
established through our review process. 



10 



Chairman Abourezk. Well, my question, before we get into that, 
my question is this: Will action on these particular statements right 
now be redundant to what we are going to talk about through the 
report itself? 

Why do these have to be taken up separately? 

Mr. Stevens. Wc just wanted some kind of a broad philosophy to 
go on. They are kind of an oversight. It is a statement related to all 
the principles that come bottomline from all of these chapters. That 
is what it generally says. 

Chairman Abourezk. I wonder if it might not be better, however, 
to — either adopt or not adopt or act on these goals in conjunction 
with the background statements that will be included in the report 
that go along with whatever goal that they lead up to, and I have an 
idea some Commissioners and even including myself, might not just 
want to come out and make a general statement like this without 
knowing what is behind it. And, would it not be better 

Mr. Stevens. You could do it at the end if you wanted to. It just 
doesn't matter. 

Chairman Abourezk. If we are talking about — let me just give 
you an example: 

No. 2, affirming the permanency of tribal government. Well, I 
don't think anybody disagrees with that, but why not act on that 
particular statement at the end of the tribal government chapter and 
just say, we are going to adopt this as a goal and it should go in the 
report. 

The report is part of the overall statement on tribal government, 
including the background and why permanency is needed and so on. 
Mr. Stevens. Sure. 

Chairman Abourezk. I am just saying, it seems to me as one 
person to be a lot better. 

Is there an}^ discussion on that question, on the procedure? 

Congressman Meeds. Mr. Chairman, I think probably it would be 
a very good thing to have the specialist explain in detail each one of 
the chapters and let us discuss and ask questions about those. Then, 
maybe later in the report, we can consider the kind of key questions 
which I recognize as being ver^y important here. But I think, ma}~be 
we ought to all have a little better grounding in this report. 

Now, it's probably my fault, but I have not seen this book until 
this morning. I got a chance to get through }'Our task force summaries 
which, incidentally, I thought were very good. I would personally 
feel much more comfortable, before marching forth on some philo- 
sophical statements about these broad general principles, in under- 
standing what you propose to do to implement those broad general 
principles. That would be my own preference. 

Chairman Abourezk. Any other comments? 

Mr. Borbridge. Mr. Chairman, I would certainly like to concur 
with that as a suggested course of action, the comments made by the 
vice chairman. 

Chairman Abourezk. Anybody else? 

Mr. Whitecrow. Mr. Chairman, from the standpoint of doing a 
total job on this particular report, I would think that the important 
issues here would have to be established and the goals of our Com- 
mission should certainly be foremost in our mind, and I personally 



11 



have reviewed this book and having spent most of the night in this 
review; and I find that these seven goals are in line with those task 
foree reports. I also find them in line with reaffirming the Federal 
commitment to American Indians. 

So, therefore, I as one Commissioner feel that to set the stage for 
our further deliberations, I think the seven goals would be appropriate 
for adoption in the initial phases, and then if it is necessary to come 
back later on, we can change those goals to come into whatever con- 
currence we have; but I do feel that these seven goals would be a 
realistic approach, giving us a wide scope insofar as what our respon- 
sibilities are as a Commission. 

Chairman Abourezk. Thank you. 

Anv other discussion on that question? 

Ada? 

Ms. Deer. I would like to agree with Commissioner Whitecrow, 
that I also have reviewed these goals and feel that we do need to have 
some guidelines in proceeding with the staff work in preparing the 
report. 

1 do understand also the need for more time and more discussion, 
so I am not saying that I disagree with that either. But, I would like 
to express my personal opinion too, that I certainly agree with the 
goals, and I feel that they are important goals and that I think all 
of us need to have a thorough discussion on them so that we all know 
how we shall proceed. 

Chairman Abourezk. All right. Let me, before we ask for further 
discussion, why doesn't somebody make a motion then and we will 
just get it up, and it seems to be a divided opinion on the Commission 
about how to proceed. 

Mr. Whitecrow. Mr. Chairman, I move that this Commission 
adopt the seven goals in our preliminary discussion with the option 
beimz left forward that we can change these goals to come into the 
total direction of the Commission as we get into it. 

Chairman Abourezk. Is there a second to that motion? 

Mr. Bruce. Seconded. 

Chairman Abourezk. Made and seconded. 

Now, is there any more discussion on this particular issue? 

Congressman Meeds. Mr. Chairman, I would like to speak in 
opposition to the motion at this time and I do that without regard 
to how I might feel later. I am just saying that I think we need an 
opportunit}^ to discuss what these goals in some detail really mean. 

For instance, reaffirmation of commitment to tribal sovereignty 
and the strengthening of tribal government. What is tribal sover- 
eignty? Is it like pregnance, can you be a little sovereign or must you 
be all sovereign? There are a whole host of questions within the 
question of tribal sovereignty which I think this Commission needs to 
examine in detail. 

I do not want to be placed in the position of voting against tribal 
sovereignty when I conceive it to be one thing and somebody might 
conceive it to be something else. 

So, I think we need to understand the degrees of these general 
concepts that we are talking about. And, I would have to vote against 
and speak against the motion as it is presently presented, and I do 
that without prejudice to how I might feel about any specific aspect; 



12 



If, when we get to the end of the tiling, tribal sovereignty, being for 
tribal sovereignty is what I conceive tribal sovereignty to be, then 
I would vote for it. But if it is not, I would vote against it and I think 
it is much too early to tell what posture we will be in at the end of that 
discussion. 

Chairman Abourezk. I would disassociate myself from that 
question. 
Adolph? 

Mr. Dial. Since there is some controversy here on it, I feel we 
should give it some more attention and perhaps we should table the 
subject until tomorrow or some other time. 

Chairman Abourezk. There is a motion on the table. 

Mr. Dial. I make such a motion. 

Chairman Abourezk. Is there a second? 

[No response.] 

Chairman Abourezk. The motion to table has been made. All those 
in favor of tabling will raise their right hand. 

All those opposed to tabling will raise their right hand. 
The vote is 5 to 3 in favor of tabling. 
Ernie? Do you have any other bright ideas? 
Mr. Stevens. Yes, sir. 

Now that you voted, what I was going to suggest before, see the 
staff work to make sure that everybody understands that to table is 
fine, possibly after you have discussed all the principles. 

All we wanted was to discuss the goals and then you can do whatever 
you like and I agree, you know, that there should be a discussion and 
explanation of what that means; and the staff is prepared to do that 
and possibly they could do that later when you take it up. But our 
only intent was to try to explain how we arrived at that and what 
each one meant to us. 

Chairman Abourezk. It appears that the feeling of the majority 
of the Commission here today is that they would rather have an 
explanation of these general goals before voting on them. 

Senator Metcalf. Mr. Chairman, I wanted you to know that I 
have voted for the motion to table. 

Chairman Abourezk. I don't know if anybody knows that Senator 
Metcalf on principle always votes against tabling, motions to table for 
the reason that he believes that the issue ought to be brought up on its 
merits even if he disagrees with the final outcome. 

He also — he almost, I should say, almost always votes against 
tabling. 

Mr. Borbridge. I would just like to comment that I feel very 
strongly that we need to discuss fully each of the points, both the 
goals and each of the chapters and the summary. 

I feel that what we were discussing now is not a matter of how 
committed we feel to what is to be presented but merely a matter of 
procedure, and in voting as I have, I feel myself, quite frankly, quite 
committed to the content of what has been presented to us; but I 
feel just as a matter of procedure we have the time and time allows 
for us to review both the premises and conclusions or suggested con- 
clusions and that at that time, we will be fully prepared to vote on the 
merits of each of these points. 

This is why I have cast my vote as I have, Mr. Chairman, thank you. 



13 



( Ihairman Abourezk. OK. 

Are you finished with your presentation now? 

Mr. Stevens. Yes, sir. 

What you can do is that the agenda coincides with the book and the 
agenda coincides with the Commission outline, and the person's name 
to the right of the subject on the agenda is the person*, if you wanted a 
preliminary presentation, or if you want to refer to them, they are the 
ones who are in charge of that particular thing. 

Chahman Abourezk. What we will do, when we come to whoever is 
responsible, can answer the questions and who is going to do the rewrite 
based upon what the Commission recommends will sit in the hot seat. 

Mr. Stevens. Yes, sir. 

Chairman Abourezk. All right. 

Now, according to the agenda — have you just finished that item on 
the agenda which says "Final Report — Prolog, Ernie Stevens," or is 
that yet to come? I'm not sure just what you did to us. 

Mr. Stevexs. I could go past the prolog, because as I was pointing 
out in the beginning, it is another one of those kinds of thing-, you 
know, but if at the end of the 4-day session you should decide that the 
prolog is in your book, and if you decide that that theme is suitable, 
it is the kind of thing that I think is not controversial and I don't 
think I need to discuss it right now. 

Basically, it is saying that Indians for a number of different kinds of 
reasons should be made a permanent part of the political fabric of the 
United States, and as a separate political entity and that they should 
have the right to be separate and apart and different forever. And it is 
a prolog, like D'Arcy's thing to kind of set things, and also, other 
than where you want to make comments to varying degrees to that, 
without regard to that, in order for the reader and we have to be 
aware that the general public is going to be the reader, the Congress 
and the Senate are going to be the reader and other people have to 
understand whether they agree or not why Indians wish to be different 
and what is the legal and moral reasons for that wish. 

And in order to understand the rest of the Commission report 
when it is finally printed, they have to understand that desire and 
that there is probably no need to pursue it any further because they 
couldn't fully understand why Indians want to be set apart from other 
people. 

Chairman Abourezk. I think it would logically follow that the 
prolog should be adopted after the recommendation instead of before, 
but 

Mr. Stevexs. Yes, sir. 

You see, all we are looking for is broad guidelines so we can start 
writing. Now that could be done at the end. 

Chairman Abourezk. What about the introduction now? 

Mr. Stevexs. The introduction, I would like Paul Alexander to 
explain what he is proposing that that be. 

Chairman Abourezk. OK. 

Mr. Alexaxder. The page in the looseleaf on introduction simply 
explains what we would conceive of it being: which is basically a 
description of how this Commission came to be; what its operative 
legislation is; how it selected its task forces; what their responsibilities 
were; how Indian input and other input was collected throughout the 



S2-749— 77 — vol. 4 2 



14 



report process; and after the report is finished, and there are general 
themes or particular points about what the limitations of the report 
may be, that the}' be spelled out right up front in the introductoni. 

It is a factual, straight-ahead chapter. 

Chairman Abourezk. All right. 

Well, then it has not been written as }*et, is that what you are 
saying? 

Mr. Alexander. No; it has not been written. The materials, of 
course, do exist but until the report itself is tied down on a substance 
basis, including the limitations of the report whatever they may be, 
it cannot be written. 

Chairman Abourezk. Until they are reported in, so it is in the 
same condition as the prolog. 

Mr. Alexander. Yes; that is correct. 

Chairman Abourezk. All right. 

The next item then is "Basic Element," a subheading under that 
is "Chapter 1, Operative Concepts, Charlie Wilkinson. " 
Charlie, would you get a microphone? 

Mr. Wilkinson. Thank you, Mr. Chairman. I would like to just 
make one brief comment to the Chair. 

As you know, I came into this process late. I am serving on a 
special consultant basis and am not in Washington on a day-to-day 
basis, so I would like to echo your comments about the work of the 
staff. 

I literally stand in awe of the kind of work they are doing right now. 
And I am just deeply convinced that the Commission is going to be 
in a kind of position where it can set the policy of whatever it is the 
staff is going to be able to crank out, a very able report. Having been 
in the office now for sometime, I am really satisfied with that. 

The attempt on this first section will be to lay a foundation for 
Indian law and policy as it exists today. We are calling chapter 1 of 
this first section Operative Concepts. 

The title I have given to my paper is "Distinctive Doctrines in 
Indian Law and Policy," it is now in late. I expect to have the final 
prepared within about 2 to 3 weeks. 

The idea of chapter 1 will be to discuss in general terms, in layman's 
language, the basic doctrines in Indian law and policy. 

The primary doctrines that will be discussed will be tribal sover- 
eignty, the trust relationship, Congress plenary power, Indian treaties, 
and jurisdiction in Indian country. 

There will be a short section at the end called something like 
"Synthesis: The Place of American Indian Tribes and Individuals in 
America's Legal System." 

Chairman Abourezk. Charlie, except for that last part, would it 
be fair, would it be a fair characterization of your paper that it would 
be mostly existing factual and legal situations without making policy 
recommend a tions ? 

Mr. Wilkinson. Mr. Chairman, it would be exactly that. It would 
be a statement of the present state of Indian law, not an attempt to 
make policy. It would attempt to be a straightforward statement of 
what Indian law is now. 

Chairman Abourezk. All right. 



15 



What was the last part now, the last section? 

Mr. Wilkinson. It's sort of a conclusion. I have titled it "Syn- 
thesis: The Place of Indian Tribes and Individuals in America's 
Legal System. " It is, I suppose, kind of an overview. 

Chairman Abourezk. That would he more, then, of a subjective 
judgment for the Commission to either adopt or not adopt; is that 
right? 

Mr. Wilkinson. No; I don't think we look at it that way, Mr. 
Chairman. \t would be more of a short conclusion or summary, an 
overview of existing law. There is no attempt in this section to make 
any recommendations at all. 

In other words, this entire section, of which this is one chapter, is 
an attempt to give a statement of the status quo. Mr. McNickle, for 
example, will do his history. There will also be a statement on demo- 
graphics and existing administrative policies. 

This is a statement to set forth some of the basic conceptual 
doctrines. 

Chairman Abourezk. OK. 

Congressman Meeds. Mr. Chairman, what was the second to the 
last one that was mentioned? 

I'm sorry Charlie, I didn't hear. 

Mr. Wilkinson. I'll just repeat: Treaties and then jurisdiction in 
Indian country. That would treat criminal jurisdiction including the 
major Federal elements. 

Chairman Abourezk. And it will be written in language that non- 
lawyers can understand. 

Mr. Wilkinson. Absolutely. We think that is extremely important. 

Congressman Meeds. More importantly written in language that 
the lawyers can understand. 

Mr. Wilkinson. I appreciate very much the vice chairman's com- 
ment, which I don't think was a question, but perhaps to answer it, 
it absolutely will be. 

It absolutely will be. I believe deeply, and we all do, that it must 
be unimpeachable on a legal basis. 

Chairman Abourezk. OK. 

Then we will see that in 2 to 3 weeks. 

Mr. Wilkinson. Yes; you will. 

Chairman Abourezk. OK. 

I think that will fall well within our timetable so far as being able 
to adopt — Ernie, where are you at? 

When is the second draft markup session? When is it scheduled? 

Mr. Stevens. We had — our next meeting is on December 18th and 
then there was a possibility of January 18th. 

Chairman Abourezk. OK. 

Then that will be ready by the December 18th meeting? 
Mr. Wilkinson. Yes. 

Congressman Meeds. Mr. Chairman, could I ask a question at 
this point? 

Would it be proper now to discuss some of the things which have 
been stated here to be the content of this report or would it be better 
to wait until we have the report and then discuss it? 

One has the feeling that perhaps we should have some idea of 
where the report is going. If it is nothing more than a presentation of 



16 



fact as to what the state of the law is, the existing state of the law, 
both by statute and case law, then 1 assume we would pretty much 
just have to wait and look at it when it is finished. 

But I don't want to be in any position now that we are accepting 
it. We are just at this point explaining the procedure which we are 
going to follow; is that correct? 

Mr. Wilkinson. Yes. 

Chairman Abourezk. I look on these early sections that we are 
talking about. 1 look at these sections as the staff giving us a general 
idea of what they intend to do, and for example, if one of us felt that 
he was way off base in writing on some issue, we could probably 
correct that right now. 

But now, for example, for Charlie's and the introduction and 
prolog, I'm satisfied that that is probably what ought be to written 
and I assume, unless you say otherwise, you are all satisfied that that 
is the direction it ought to go in. 

Then when we get the draft itself, where obviously we are going to 
have to look at the draft and see if indeed that is what we want. 

I want to make one clarifying statement about Kirke Kickingbird, 
our counsel. Kirke got nervous because he — when I made the an- 
nouncement that he had resigned, it sounded like he did so because 
of some controversy. That is not the case. Kirke was on leave of 
absence from his organization — is that what you call it, an organization? 

Mr. Kickingbird. Yes. 

Chairman Abourezk. Law firm or whatever. 
Mr. Kickingbird. Right. 

Chairman Abourezk. It was essential that he get back to it, 
because of a new project they are starting. I didn't want to see him go 
back, but I told him that I understood, because he has got to make a 
living and he, in fact, did have to go back to it and I asked him if 
he would undertake special assignments for us if the need arose 
and he has agreed to do that. But he's got to spend now the majority 
of his time back in his organization and that's why he resigned. 

And, he went with the full appreciation of the Chairman and I'm 
sure the other members of the Commission. 

Okay. 

Any other questions on operative concepts, on Charlie Wilkinson's 
section? 

If not chapter 2, History of U.S. -Indian Relations — D'Arcy 
McXickle is here. D'Arcy has written his concise history of American- 
Indian relations. Have the members had a chance to look that over? 
Would anybody like to comment on its form and the way D'Arcy 
presents it? 

It is about what I had in mind. In fact, it is almost precisely what 
I had in mind. Ada? 

Commissioner Deer. I would like to commend Mr. McXickle on 
this. It is a very concise, cogent discussion that I think should be 
given broad distribution and I would like to recommend that this be 
included in every high school and college te.xtbook in the country 
and also, especially to some of the members of the press so they get 
their facts straight. 

And, I feel that when we all have a chance to read it, that the 
other Members will share my enthusiasm. 

Chairman Abourezk. Thank you. 



17 



Commissioner Bruce. I would like to concur with that statement 
of Commissioner Deer, but also, Mr. Chairman, I wish you could 
give us just a quick overall summary kind of thing because you did 
that for us yesterday and I thought it was very helpful. 

Chairman Abourezk. D'Arcy, do you feel like doing that today? 

Mr. McNickle. I have some notes. 1 don't have a prepared state- 
ment . 

Chairman Abourezk. Well, just go ahead. 

Mr. McNickle. In other words, I tried to state some of the 
dimensions of the problem we are dealing with. 

I can't imagine a better time for this kind of investigation to come to 
a head. In other words, because of a new administration coming in, 
and because it seems to me that Indian people themselves are at a 
point where they want something to happen and are going to push 
for something to happen, and at this point they have background 
and training which they didn't have 20 or 30 years ago which enables 
them to work within the power structure of the dominant society. 

First of all. I would make the general comment that extermination 
was never accepted as a required official policy of the United States, 
although at various times extermination was recommended. This is 
particularly true after the Revolutionary War when there was a 
contest, particularly between the Iroquois Tribes and the newly 
forming nations about land title, occupation of land. There were 
those. 

In what was then the Confederation, urging extermination be 
adopted as the quickest way to settle land issues. This was never 
accepted at official level nor ever after that, although again, there 
were times as during the removal of Indian tribes from the east to 
an area west of the Mississippi when extermination almost became 
a fact, although, again, it was not a declared policy. 

In California, in the 1850's, again as a fact, extermination occurred. 
The Indians were shot down like rabbits by boisterous miners who 
wanted to get a hold of mineral lands. Again, it was not an official 
policy. 

Now the effect of not having adopted extermination as an official 
policy is something that we recognize or speak of today as coexistence 
came into being. The French are even more tolerant of native peoples 
than the English colonies were, in actually intermarrying with the 
tribes they traded with and did not attempt to occupy land. They 
built forts along the trading posts and guarded the trading posts 
along the trade routes, but did not extend out into the countryside. 

The Spanish were probably the least tolerant of the people of a 
different culture, different background, and did a pretty good job of 
wiping out tribes south of us. This U.S. policy changed with the com- 
petition for land. As settlement went westward, more and more 
tribes were found to be in the way of what was thought of as progress. 

So, between the middle of the century and up until recent times, 
the various measures were adopted to make possible the acquisition 
of tribal lands. The most notorious case was, of course, the Allotment 
Act of 1887. 

But after 350 to 400 years, what is now obvious is that the Indians 
have not changed, they have remained Indian, that they have changed 
but they have remained Indian; let's put it that way. 



IS 



As a matter of fact, they started changing from the very first with 
the acquisition of the horse, steel tools, woven clothing, They accepted 
what was in their interest. What they could fit into their way of life 
but remained Indian. They became better hunters because they had 
better hunting equipment, for example, but remained Indians, with a 
hunting subsistence. 

Now, this, you know, it is nothing peculiar about Indians, it's 
true about the Irish, English, French, over these 350, 400 years, these 
people have changed also and yet have' remained essentially Irish, 
French and English. 

Now this is a simple fact that you expect to be universally under- 
stood, but strangely enough it isn't. Strangely enough, the United 
States, instead of extermination adopted this policy of bringing the 
Indian people into the dominant society through a process of assimila- 
tion as it became to be called. 

And Indians have resisted that to the extent that this policy 
resulted in actions which were coercive, compulsive. Indian children 
being taken away from and out of their homes and sent hundreds or 
thousands of miles away to spend their growing up years as in an 
alien environment with the idea they would no longer be Indian. 
That is one aspect of what happened. 

Chairman Abourezk. D'Arcy, weren't you involved in the 1934 
Indian Reorganization Af t? 

Mr. McNickle. Right. 

Chairman Abourezk. Have you included, and I haven't read 
your entire paper yet, but have you included in that what has hap- 
pened at the IRA since 1934, what the Bureau of Indian Affair- 
has done with it; how they have handled it and so on. Is that in your 
paper? 

Mr. McNickle. Yes. 

Chairman Abourezk. Can you give us just a brief overview of 
what has happened to it in the hands of the Bureau since then? 

Mr. McNickle. Well, first of all the meat, the guts of the original 
legislation as introduced was removed. It involved things like author- 
izing tribes to contract to carry on the services such as the BIA up 
until then was providing. That was cut out. 

It set up a section directing the Commissioner to revise the educa- 
tional programs so that the Indians could be trained in management, 
in how to operate the services which they were going to take over 
under contract. 

Also to include histories of the tribes, their own background and 
their own religions with the Government and this was cut out. 

There was a provision for setting up a special tribal court S3~stem 
and that was cut out; so what was left was a kind of recognizing the 
right of tribes to adopt written constitutions and again, that was 
hampered or harnessed, restricted by requiring a constitution be 
approved b}^ the Secretan^ of Interior and moreover, any actions taken 
by the tribe affecting trust property or a trust relationship had to be 
approved by the Secretary of Interior. So the Indians realty didn't 
have a good vehicle to work with. 

To add to that problem, the Indians really didn't understand what 
was in it. There was a series of meetings held around the country to 
explain the IRA, but they were packaged kinds of meetings, you 



19 



know, the agenda and everything was sent out and probably even the 
resolutions that they were supposed to adopt approving this. And tin* 
diseussion was minimal. Usually 1 day or 2 day meetings. 

There was no attempt really to translate this material into language 
which was representative at these meetings and oftentimes, the In- 
dians, even though they spoke English, the}' were dealing with con- 
cepts which, you know, were not in their ordinary vocabulary, so 
that the understanding of the IRA was at best very faulty. And the 
Act was voted down by many tribes. Not only because they didn't 
understand it but there was some genuine opposition to what was 
being proposed. 

Congressman MsiEDS. Mr. Chairman, may I ask a question at this 
point, and I have not had an opportunity to read your work here, 
D'Arcy, but it sounds to me like a very good overview of both official 
declared and undeclared policy of Government in various forms with 
Indian relations. 

I am just wondering if you could go through very briefly, as you 
have it seems to me, through these various policy periods, and state 
generally what the policy was, how it was implemented, and what 
result of that policy was? 

Is that pretty much what your work does? 

Mr. McNickle. Yes; that's the review that I have written. 

Congressman Meeds. Could you give us that kind of an overview 
here if it is all right with the rest of the Commission? I would be very 
interested in listening. 

I think you said assimilation. 

Mr. McNickle. There has been a problem going way back is what 
is meant by assimilation. It is a tricky word and quite oftentimes, it 
means, obliterating— -wiping out what was there before, and making- 
over people into a new cultural background. A new set of beliefs and 
customs. 

Assimilation need not mean that. It should mean the right of a 
people to change over time, selecting what they want to adopt, re- 
jecting what they cannot live with to the conflict of their beliefs, to 
their system of values; but if allowed to select and choose and adopt, 
people will .change. People do change. 

No society remains static. Now that is the normal process that 
people, unless they are under military pressure or some other kind of 
pressure to change wholesale, while ordinary change comes as people 
choose it. And that has been the difficulty all along, in tiying to adopt 
legislation, adopt field practices that the Indian people can live with, 
can understand and accept and live with and function and grow. 

And it has never been understood. Evidently, it is easier to make it 
wrong than it is to work with the people to the point where they under- 
stand what you are talking about ; what you are trying to do, what the 
advantages are in changing their ways and allowing them to grow 
into that. That is difficult. We don't know how to do it very well and 
we haven't even attempted for most of the time — simply tried to 
force change on people. 

Now that is the gist, I guess, of that review that I wrote. Anyhow", 
that gives you some idea of the dimensions as I see them of what is 
involved. It is, you know, so often said that the Indians don't change 
or they won't change. 



20 



In the 1950V, during the termination periods, Senator Watson 
would say, "The Indians won't change unless we require them to." 

Well, that is not true. J was talking with an old Navajo medicine 
man some years ago who was non-English-speaking and in our terms 
not educated, but he said, "We're learning all the time." 

And he meant it in several ways. First of all, the Navajo medicine 
men used to spend a lifetime learning how to do it. There are hundreds 
and hundreds of chants and songs that you have to learn and they 
have to be perfect. But even also in terms of learning to live with the 
people around, the non-Navajo people around him. "We are learning 
all the time," he said. 

This is a good statement of Indian attitude. They learned quickly 
when — you know, when the horse came, they learned how to be good 
horsemen and how 7 to take care of horses and this is to their advantage. 
It's much easier to ride a horse out on the hunt than to go on foot so 
that makes sense. But this is — you know, that wasn't a special case. 
It's been true all down the years that Indians have changed. 

Now the reason I said, at the beginning, that, you know, the best 
possible time for this kind of a study that has been made is because 
Indians are — it seems to me — are ready for something like this to 
happen. They were not ready in the 1930's when, the Indian Reorga- 
nization Act was adopted. 

That was just some 40 some years after Wounded Knee and a lot 
of Indians remembered what happened in the latter part of the 19th 
century and they simply withdrew and went home and tried not to 
have anything to do with the white world. 

But, this now is completely changed. There are over 13,000 Indians 
at the college level of training right now. They are becoming lawyers, 
becoming doctors, becoming engineers, social scientists; they are 
accepting the challenge of the modern role, but again, still, they are 
saying, "We are not going to become brown- white men. We are going 
to still be Indians, but we will use these tools and these skills that 
have been developed; will use them for Indian purposes." 

Again, some years back, when I had a workshop for Indian and 
college students at the University of Colorado, and the Indians then 
were saying, "We want education for Indian purposes," and they 
were going back to school and making good, which was when I was 
growing up, there were probably not a dozen Indians beyond high 
school anywhere in the country. 

This picture has completely changed. Thus, it's going to be difficult 
from now on to be coerceive in dealing with Indians. They are going 
to be able to talk back, to take actions which will be in their interests. 

I think that sort of summarizes. 

Chairman Abourezk. Jake, you had something to say? 

Mr. Whitecrow. Mr. Chairman, one of the things that I have 
noticed in your presentation here, D'Arcy, is the fact that the com- 
ment you just made, that Indians want to remain Indians, and the 
relationships that I've had out in the field indicate the same thing. 

Being raised as an Indian, knowing the old ways, and haying to 
become educated, hopefully to compete out on Main Street with any 
other individual out here as a critizen of the United States. 

Your comments, particularly on page 15 of your recitation here, 
whereby you state the official ideology of the Federal-Indian policy, 



21 



reflected humanitarian aims almost universally (hose in charge of the 
Indian affairs assumed that Anglo-American civilization represented 
a higher level of culture and mora] development and a more viable 
economic system than tribal cultures might encompass. 

When I read that, it reminded me of a story that 1 have been telling 
for several years now in regard that Indian people had a culture. 
They had relationships with what is called, my good friend up- 
stairs, way upstairs and hopefully I'll be resting with him some day 
in the future. But, I hope it's not real soon. 

The Indian did have special relationships witli our Creator. 
They knew how to treat one another. They treated one another with 
dignity. Sure, we had conflicts between tribes and I think this is 
really the only thing that American Indians are asking, and hopefully, 
with the product of this Commission, we will be able to allow Indians 
to be Indians and simultaneously have their own government, have 
their own relationships within their own geographic area^ as estab- 
lished by treaty; and also, to allow those Indian tribes to have ju- 
risdictional processes over their geographic area. 

With this particular thought in mind, I would like to call to the 
Commissioners' attention a story that I tell occasionally when I am 
making a presentation, and it fits just exactly what you have said here, 
Mr. McNickle. 

That when the white man first came to this continent, he looked 
around and he said, "Hum, there are people here. There are males 
and there are females and I just think we'll call them Indian." 

Well, what do they do. The female, she does all the work. She 
chews the buckskin, she makes the moccasin, she tends the soil. She 
tills it, she harvests the crops and preserves the food, prepares the 
table. She takes care of the cleanliness and the sanitation around the 
home. She also makes sure that all of her work is totally done. She 
looks after all of the desires and the whims of the male. 

She also, if it's necessary to move, she manages this particular 
move. Now, he said, "WTiat does the Indian do?" And, he looks around 
and he says, "Well, they hunt, they fish, they make a little love." 

Now, the white man thought he could improve on that system of 
life and as a result, all of us Indian men now have to work. Is that a 
good system or not? Personally I agree with everyone. I think we 
need to go back to old ways. I would like to hunt, fish, and make love. 
I think it would be a tremendous life. However, many Indian women 
would like to run me off when I say that. 

So, from that standpoint, I think this pretty well sets the stage. 

If we could provide this kind of return to 155 years ago, whereby 
the Indian people did have the ability, they had the relationships, 
and they had a culture that was beautiful. They had the relationships 
that were beautiful also and I don't think the United States of 
America could go -wrong by patterning itself after those relationships 
that we had as American Indians. 

And, as an officer in the U.S. Army Reserve, I too, am a strong 
supporter of this country and I would like to see, once and for all, 
the results of this Commission bringing about a return to all of those 
tribal relationships and allowing Indian citizens to be Indian, and 
allowing a smooth and coordinated development between govern- 
ments, regardless of what level those governments may be. 



22 



And, I think it can be done. I think that the Indian people have 
the ability. They have the ingenuity and certainly they have the 
concepts of what they want. For many, many years now, we have 3a1 
and we have Listened to the way things should be done. We have not 
really made a strong effort to change those things and with this 
Commission, fellow Commissioners, we have this opportunity of 
changing things, and J think we should point toward making the 
wrongs right once and for all setting the stage for future development 
so that our Indian people can be Indians. Our Irishmen can be Irish, 
our Germans can be German, our Japanese can be Japanese, but 
still all in all, we are citizens of the United States. I think it can be 
worked out. 

I see no problem in that and Mr. McNickle, I think you have a 
wonderful, wonderful presentation. I would also like to remind the 
Commission that just yesterday evening I had the opportunity of 
purchasing Mr. McNickle's latest book, "They Came Here Firit." 
And he's paying me a quarter for every time I say his name. 

We have already made that arrangement. So, I would like to 
recommend this book to the Commission. 1 think it would be a fine 
addition to every Commissioner's library. 

Chairman Abourezk. Thank you. 

Louie? 

Mr. Bruce. Mr. Chairman, I'm fascinated with this article and I 
do agree it ought to be reprinted and sent out everywhere for two 
reasons. One is that I was around when the IRA was in existence and 
started. I attended some of those well-planned meetings b} r the 
Bureau and its staff. 

Some of them moved and went, some of them voted in favor, 
sometimes against their wishes; but in D'Arcy's article, he says Indian 
opposition to assimilation policies never disappeared, but everytime 
the Indians found an answer to policies, the Bureau found a way 
around it. And, I am not going to focus on that. 

But, as we look at the history of the Bureau and its activities and 
somebody could interpret that I am anti-Bureau, which I am not 
completely. However, there are a lot of fine people in the Bureau and 
I like them very much — but over the lifetime since the Bureau has 
been in existence, it has gone too far beyond the matter of protection 
and we find ourselves involved in a situation w T here Bureau offu sials, 
not the Commissioner, were making: some individual decisions for 
individual people and Indians, including myself as an Indian. 

And that's why I feel that we have to take a stand and move, and 
that's why I'm interested in the Policy Review's recommendation for a 
separate and independent agency and I want to hit hard on that as 
we go down the road, because I feel it's necessary. 

I think I have said more than once that no Commissioner, Indian or 
non-Indian, can ever be affected if he really and truly wants to do 
something for his people, because always, there is somebody else above 
him who signs that paper off or buries it in some file or something. And, 
unless the Commissioner, our man for us can be where he can be 
effective, we are not going to make any progress. 

D'Arcy says in his article that we've sort of moved away from the 
feeling of defeat to something where, you know, we see blue sky, and 



23 



so forth. And I think in your article you did mention that Indians, 
"Have become more aware of their common problems and common 
peril and they are learning how power is used in contemporary society.'' 

And as far as the Bureau is concerned, whether it be separate, Dm 
afraid in some respects that if it is set off alone, somebody could wipe it 
out overnight with the stroke of a pen. 

However, some change has to come. Some change has to come if we 
are talking about self-determination and Indians having a right to 
decide what happens to them on the reservation or elsewhere; and 
so I tie this in with a compliment to you, D'Arc3 , who I've known for 
100 y ears, and the kind of support I expect 3^011 give in changing the 
Bureau of Indian Affairs. And I guess many of 3-011 know how sincere 
I am in that respect. 

Thank 3011, Mr. Chairman. 

Chairman Abourezk. Thank you, Louie. 

D'Arcy, do 3 011 have any more 3-ou want to sa3~ on this? 

Mr. McNickle. No, sir; I said enough. 

Chairman Abourezk. We appreciate it ven^ much. I think it's an 
excellent piece and we are very- grateful. 

Mr. McNickle. Thank you, Mr. Chairman. 

Chairman Abourezk. The next chapter — we are going to, in- 
cidentally, we will adjourn at noon and come back at 1:30, so I think 
we might be able to get through that next piece. Paul Alexander, on 
chapter 3. 

Mr. Alexander. Chapter 3 is currenth r called Contemporary 
Conditions of Indian Affairs. 

Chairman Abourezk. Is that listed as demographics? 
Mr. Alexander. Yes, it is. 

This piece is being done for us D3 r the Library of Congress. It 
basically has two parts, The first part is a compilation of the existing 
statistics on social, economic, education, and similar items, as they 
pertain to Indian people today. 

The second part of this chapter would be a critique of the existing 
data s3 T stems and what their lacks are in providing the kind of data 
that is necessary to make decisions D3 r Indian peoples themselves, 
and by the various agencies that have responsibilities in Indian 
affairs. 

We expect to have a draft from the Library of Congress, who we 
are in contact with, in December, hopefully before the December 
Commission meeting. 

Chairman Abourezk. When you say, ''hopefully/' I think it's 
pretty essential we have it before the December Commission meeting 
in time to either adopt it or make changes in it if we think it necessary. 

Mr. Alexander. Yes. 

Chairman Abourezk. Will we know from reading this particular 
chapter where the Indians are, what their tribes are, what their land 
base is, through maps and other things? 

Mr. Alexander. We will have some of that information. There are 
data problems and particular^ with respect to land base. We know 
from our own experience that some of this has to be added by the 
staff to what the Libran T of Congress is producing. There are com- 



24 



peting figures from official sources and where that exists, it will he 
pointed out. 

Yes; an attempt will be made to do that. 

Chairman Abourezk. OK. 

Anybody have any other questions on this chapter? 
Commissioner Whitecrow. Will that include all your demographics, 
Paul? 

Mr. Alexander. It will be an overview of demographics. It is our 
conception, and I guess we can say it now, and you can change it or 
what have you, that in the support section on individual chapters where 
there are specifics, for example, in the education chapter or a chapter 
dealing with child placement, where there are individual specific 
statistics and factual support material, those types of materials would 
be integrated throughout the entire report and not just simply found 
in the first section. 

Mr. Whitecrow. I know I've had a great deal of problems, and 
I'm sure every other Indian in the country has had problems in 
trying to put together programs and projects, because of a lack of 
statistics and demographics. 

Mr. Alexander. Yes. The significant problem, we seek in the 
second part of this chapter to highlight that problem and perhaps 
to come up with some recommended action to solve some of the data 
problems. 

Mr. Whitecrow. OK. Fine. Thank you. 
Chairman Abourezk. Any other questions? 
Ada? 

Ms. Deer. In your critique, Paul, will you be specifically addressing 
the impacts on the Indian communities, that lack of adquate data 
has presented? 

Mr. Alexander. I think that is appropriate in the second section. 
There are a number of impacts that we are familiar with and what 
we intend to do is to get the draft from the Library of Congress and 
have substantial staff input into it, and present both to you for }~our 
adoption, critique or what-have-you. 

Chairman Abourezk. Other questions? 

If not, Paul, thank you very much. 

Ray Goetting, chapter 4, Federal Administration. 

Mr. Goetting. Thank you, Mr. Chairman. 

This chapter, like the others in the first section of our final report, 
will be subject to review in terms of the policies or the procedures and 
the applications that are developed as we go on through the book. 
I would like to say specifically that the basis legally that has been 
set and described to you in the first sections of these chapters that 
have just been described will all terminate in the manner in which those 
are fulfilled in an administration of the Federal Government to carry 
out the obligations, to satisfy the needs, to develop the delivery of 
services that Indian people have decided or have recommended to 
this Commission to be considered. 

This Commission has the obligation, of course, to determine how 
those services will be provided and under what conditions and how 
the Federal Government will be organized in a manner to do that. 

Chairman Abourezk. This chapter you are preparing, when will 
it be done first of all? 



25 



Mr. Goettixg. Only when we're through, only when the Commi— 
sion itself decides how much judgment they will put on the organiza- 
tional structure. 

We will discuss that as we go through the elements. This is the 
problem that I feel 

Chairman Abourezk. You'll have to back up a minute. 

There are some things I don't know about. What is the purpose of 
this chapter? 

Mr. Goetting. To set the base for the decisions that will be made 
by the Commission. Somewhat the policies that have been established. 
It will show the history of structure over a period of time, and then 
to permit the development of the recommendations of the ( lommission 
as to how they would like to see the structure in the future. 

Chairman Abourezk. Well then, the other chapters, findings and 
recommendations, isn't that redundant? 

Mr. Goettixg. Yes— well, it would lay the foundation in term> 
of presenting the report to the Congress as to what the basis perhaps 
would exist in the future, in the report. 

The details ire in the report but this would be somewhat of a sum- 
mary in regard to it. 

Chairman Abourezk. I am under the impression that the section 
on findings and recommendations will set out recommendations in a 
section. Wiry do we need another one up here in the introductory 
part? 

Mr. Goettixg. Well, there are some basic elements that would be 
explanatory and the summarization of the information that follows 
in the report in much more detail. I think it would be somewhat more 
of a summary than just to set the tone that the remainder, therefore, 
describes in detail. 

Certainly, the chapter would discuss the alternatives that have 
been considered, the manner that they have approached the develop- 
ment of whatever the structure is designed to do it. 

Congressman Meeds. Mr. Chairman, will this then be a set of 
recommendations to the alternatives to the administration of Federal- 
Indian relationships among which the Commission would select 
the direction it wishes to recommend to the Congress or to the 
administration? 

Mr. Goettixg. I think it would describe the process by which he 
would have laid the basis for making that decision and recommenda- 
tion to Congress. Yes. 

Mr. Whitecrow. Ray, would the Bureau structure reorganization 
be included in this or would that be included in the chapter down 
here on 

Mr. Goettixg. I think the basic overall description might be in 
this chapter, but the details of an organizational structure would be 
in the details of the outline that follows; yes. 

Mr. Whitecrow. Say again? I lost you there somewhere. 

Mr. Goettixg. I think a general explanation of Federal adminis- 
tration to set the tone by which the decisions were made and the 
detailed descriptions that follow in the matter of delivering services, 
in the matter of deciding the organizational structure and so forth 
would be in the details of how it would be carried out. 



20 



The outline, as you go through, would discuss several things, but 
this would kind of tie it together, to set the tone for what the Com- 
mission considered important in making their decisions about it. 

Chairman Abourezk. Ray, I guess one thing that disturbs me i . 
3^ou've got it entitled Federal administration, and that deals with 
only one chapter down below in section 2. Now, if you want to, 1 
think it's a good idea to have recommendations right at the beginning 
of the report, because for those people who don't want to read through 
the whole report and want to get to it very quickly and just find out 
what is it we're doing, what are we up to. that's fine. 

But to pick out only one part and make an initial recommendation 
doesn't make much sense to me. It makes more sense to take chapter 4 
and summarize the recommendations of all the other chapters. .5 
through 15. 

Mr. Goettixg. It could, yes. 

Chairman Abourezk. What do the other Commission member- 
think about that? 

Mr. Goetting. That's where the details of how it's done is in the 
next number of chapters. 

Chairman Abourezk. That's what I'm saying. I'm disturbed I 
guess because you only pick out one section, Federal administration, 
to summarize rather than summarizing all of them. 

Mr. Goettixg. Well, I think Federal administration, in a broad 
sense, covers how the whole relationship will be performed. I don't 
think it's limited to specifically an organizational structure. T think 
it's how it carries out the whole works, so this would sort of lay the 
foundation. 

Chairman Abourezk. What's wrong with changing the title of 
that chapter and it's contents by saying Conclusions: Summary of 
Conclusions and Recommendations, and then giving us like a one 
sentence shot on the other 10 chapters? 

Let me hear some more comment from the Commission members 
on that, on this whole question. 

Congressman Meeds. Mr. Chairman, as I understand it, this 
will simply be a presentation. This is not a final report. It is simply a 
presentation to the Commission of alternatives from which the 
Commission will select one or more for the delivery system, or admin- 
istrative system for administrating the Federal-Indian relationship. 

And, if I am correct, then I'm in agreement with doing it and doing 
it in this place. But the depth of that relationship would be described 
in a later chapter in greater detail. 

Chairman Abourezk. Lloyd, I think you are correct only in part. 
The Federal-Indian relationship deals with chapters 5 through 15, 
really, and what recommendations we're going to make. 

Congressman Meeds. But how do you administer that relation- 
ship, that is the question we are asking here; and I understand this 
will be a presentation of a number of different ways to administer 
that relationship. 

Chairman Abourezk. But that is in chapter 7. I mean, that is 
what bothers me, is you already have that down below in chapter 7. 

It is not logical to me to do it this way, to pick out chapter 7 and 
summarize up in the introduction and leave the other chapters alone. 



27 



Mr. Goetting. Well 1 think, really, that the Federal administra- 
tion and the total picture is not just confined to chapter 7. 

Chapter 7, specifically, is for the delivery system and how the 
mechanism is there. But Federal administration would be a summary 
of the entire Federal >tructure, how it has been in the past, wh.it sort 
of alternatives there are, how the solutions might have been arrived 
at, or the problems developed in the following sections. 

I think it would take care of all of it, all right, but if in the same 
picture and it applied to the mechanisms, would be the same a- the 
legal or anything else. Now, if you would care to, for a moment — 1 
might ask Paul to describe how it fits in a similar fashion and some of 
the other paragraphs in this process were developed. 

Mr. Alexander. This entire section, of which this chapter is the 
last one of three, is essentially conceived of as laying out the basic 
understanding in the major areas that are necessary to deal with the 
rest of the report. That is the special legal concepts that exist in 
Indian law that are not necessarily understood or common to the 
rest of the legal system in this country. 

The historical status of Indian tribes and people in their relation- 
ship with the United States and others. 

The demographic situations concerning Indians currently, and I 
will get right to this chapter. 

What our feeling was initially, and it may have shifted somewhat, 
was that the notion of how the Federal Government has operated, 
what are the different systems that it has used and what are the 
options or the ideas that people currently have is a crucial element in 
understanding all the rest. 

I did not necessarily see this chapter, although others may see the 
chapter, as a place to summarize recommendation^ : but to provide 
the overview of what Federal administration has been and how crucial 
it is to understand that factor in dealing with any issue in the re- 
maining 10 chapters. 

Chairman Abourezk, on your point about the summary and it- 
location — this location is not definitive. Chapter 15, which is the 
last chapter in the report conceives of such a summary as you have 
identified. Perhaps it would be more appropriate if this were in the 
beginning of the report, but it is the — at least the staff recommendation 
that there be a summary chapter that lays out the major recommenda- 
tion and theme for each of the areas. 

Chairman Abourezk. AVe are talking about two different things. 
Let me just dispose of that summary thing first. I personally would 
be in favor of putting a summary of the conclusions and recommenda- 
tions right at the beginning and I don't know what the rer-t of you 
think, but it makes more sense to me to do it that way. 

Let me just ask, does everybody feel that way pretty much? Should 
we just ask the staff to do it that way then? 

All right. 

Second, on Federal administration, I am just now getting a sort of 
a hint at what you are going to write in that chapter but I am not 
really sure yet; and it may be clear to the rest of the members of the 
Commission, it is not yet to me. 



28 



Do T understand you to say that you are going to write a chapter 
on the importance of Federal administration of all the Indian policies, 
how it has been handled and how it ought to be handled, and the 
attitudes of the bureaucracy and things like that? 

Mr. Alexander. And the different approaches that have been 
historically taken. What I guess the issue comes down to is what is 
the last part of that chapter; does it lay out conceptually what different 
approaches are, or whether it at that point lays out the approach that 
the Commission in fact adopts for its recommendation on the Federal 
administration. 

And, it could do either and we in a sense need vour guidance on 
that. 

( Ihairman Abourezk. OK. 

Adolph. you wanted to make a recommendation? 

Mr. Dial. I hate to oppose at this phase. You know, they spent 
so much time on it, and there are several legal minds and so forth, 
but if they want it, I would say let them have it; but I would also go 
along with you for the summary and conclusion in the beginning. 
In tlii- way, 1 think it would be read. 

Mr. Goetting. 1 think, Mr. Chairman, there is a great concern 
among all of the task forces and all of the input from the Indian tribes 
and so forth as a specific type of structure that might be recommended 
by this Commission by which the Federal Government actually 
administers all of the rules and regulations and processes it goes 
through. 

Chairman Abourezk. That will be in the chapter? 

Mr. Goetting. I think an explanation of how we arrive at that 
recommendation we make to Congress as to the structure. 

One of the elements in section 2 of the law says that we look into 
Federal Administration and structure of Indian affairs. And that 
structure portion, I think, needs to be covered somewhere in summan' 
as to how the Commission evaluated the material it has and how it 
decided what to do about mechanisms that provide the obligation of 
the Federal Government toward Indian people and I think it is a very 
important element, a very important subject, to get that out in the 
open as well as the legal basis for determining the Government's 
obligation as well. 

Once the obligation is determined, another question is how is that 
obligation to be fulfilled and what mechanisms do you use and how 
do you arrive at those conclusions. 

I think a summary of that is 

Chairman Abourezk. Well, we will have a chance to look at it. It 
was just not clear to me in the beginning what you really wanted to do. 
Any other questions, comments? 

If not, the bewitching hour has arrived and we will now adjourn 
until 1:30 

Mr. Whttecrow. Mr. Chairman, before we adjourn, may I bring 
to the Commission's attention a letter that we received from the 
National Congress of American Indians requesting an extension of 
time on the submission of our report to the Congress, giving the 
Indian people out in the boondocks, so to speak, an opportunity to 
address these various issues, and I would like to ask during our lunch 
period if we cound invite Mr. Mel Tonasket to have lunch with us to 
explain the reasons why this request was made. 



29 



It is my understanding that our task force reports have not even 
been printed as yet and have not gone to the field. So, I think we are 
into a situation here whereby the Indian people need to have a little 
more time in which to review the findings of the task forces and review 
our potential report. 

Chairman Abourezk. Without objection, Mel Tonasket is invited 
to lunch. 

Mr. Whitecrow. Dutch. 

Chairman Abourezk. We are in recess until 1 :30 then. 
Thank you, Jake. 

[Whereupon the meeting was adjourned at 12:15 p.m. to reconvene 
at 1:30 p.m.] 

AFTERNOON SESSION 

Chairman Abourezk. The Commission will resume its meeting. 
Gil, are }'ou ready? 
Mr. Hall. Yes, sir. 

Chairman Abourezk. We will get into, now, Section 2 — Findings 
and Recommendations, beginning with Chapter 5: Federal-Indian 
Trust Relations. Gil Hall. 

Gil, go to it. 

Mr. Hall. OK. 

Let me say as an introductor}' comment 

Chairman Abourezk. Get that microphone a little closer. It's hard 
to hear vou. 

Mr. Hall. All right. 

As an introductory comment, let me say that whereas I was the 
lead staff person with respect to summarizing and drafting the mate- 
rials on the trust responsibility, it is an area which everybody partici- 
pated in at one time or another as being a ver}^ complex and difficult 
subject. 

So, Charlie Wilkinson and others may very well have some com- 
ments also. 

The first 17 pages of chapter 5 are intended to be ver}~ brief, 
concise characterizations of task force findings and recommendations 
in the area of trust responsibility. You will find at the end of each 
finding, or at the end of each recommendation, a number identifying 
which of what task force and in some cases, exactly what page and 
what section of that task force report, dealt with that subject matter. 

At the end of the chapter, starting with page 18, is a staff summari- 
zation of what is in the task force reports, as well as any of the opinion 
expressed in hearing and other sources. 

The concept of trust responsibility is one wmich virtuahV all of the 
task forces had to come up against at one time or another in the course 
of their studies. For that reason, the staff felt that a summarization 
at the end of the chapter might be useful for purposes of this meeting 
in considering the concept. You'll see, starting on page 20, principles 
of the trust responsibilit} 7 which the staff recommended the Commis- 
sion adopt as a framework in drafting that chapter of the report. 

These principles are consistent with all the task force reports, 
Indian testimony, and a great deal of information that has been set 
forth and written about in that subject area. Despite the fact that the 
trust responsibility is a confusing concept on which there is great 
misunderstanding, this is not a definition of the trust responsibility. 



82-749— 77— VOL 



30 



The staff did not attempt to propose a specific detailed definition, 
nor did any of the task forces. 
Chairman Abourezk. Why not? 

Mr. Hall. It was our determination, and I think I speak for 
everyone on this, that to do so would be not only extremely difficult 
but perhaps unwise for this reason: The trust responsibility as it is 
interpreted by the courts and as analyzed in a variety of sources, and 
as administered by the Federal agencies is a dynamic legal concept 
which is evolving constantly, much like the principles in the United 
States Bill of Rights. Thus, for the same reason that we would not 
propose a specific definition of any of the principles in the Bill of 
Rights, we would not propose a definition of trust responsibility. In 
doing so, you might very well inadvertently infringe upon clearly 
established legal rights that are already there. 

As an alternative to that 

Chairman Abourezk. It is more a question of you are afraid you 
might leave something out if you try to define it. 
Mr. Hall. That's correct. 

As an alternative to that, we are recommending six broad principles, 
which we feel characterize the trust responsibility as specifically as is 
wise in this context, to whom it is owed, and who has the duty of 
carrying it out. It is planned that if the Commission gives us an OK 
on these principles, the staff will then draft that chapter of the report 
consistent with these principles. 

Chairman Abourezk. Gil, one question comes to mind that I am 
going to have to ask for each one of these chapters. 

You have the recommendations drafted in such a way that it is 
capable of being put into legislative language; I mean, in other words, 
it is legislation requirement, or is this just a general principle that 
ought to be adopted by the administration, by the Bureau of Indian 
Affairs? 

Mr. Hall. Well, I would see this as eventually constituting a policy 
statement from Congress to give guidance in the administration of the 
trust responsibility. 

Now there are certainly elements of this which could be instituted 
immediatel}' by the executive branch, if so disposed. No legislation 
would be necessary. I think, however, the preferable view would be 
for Congress to give policy guidance to the agencies who, if }*ou review 
congressional testimony in the area of trust responsibility, as well as a 
lot of testimony from Indians, demonstrate confusion as to what the 
trust duty is and how we cany it out. 

What this is intended to do is to give that guidance to the Federal 
agencies. 

Chairman Abourezk. Are you recommending the establishment of 
a trust council authority in this section? 

Mr. Hall. Well, we have not specifically dealt with that question 
there. 

Chairman Abourezk. Is it dealt with anywhere? 

Mr. Hall. One or two of the task force reports discuss the trust 
council concept as a possible solution to the conflict of interest problem. 

Chairman Abourezk. Is it anywhere in the final draft of the report? 

Mr. Hall. In the final draft of the task force report or Commission 
report? 



31 



Chairman Abourezk. No; the Commission report. 
Mr. Hall. Yes; that is dealt with in the Federal administration 
section which is chapter 7. 
Chairman Abourezk. OK. 

Senator Metcalf. I am concerned that the growth of Federal 
trust responsibility has gone away from many of the patterns of our 
traditional, legal trust relationships in civil trust. 

You pointed out that there may be some conflict of interest. Of 
course there are conflicts of interest with the Bureau of Indian Affairs 
which exercises a special trust responsibility, and at the same time 
exercises an administrative responsibility. 

I think that any report we make should indicate a deviation from 
traditional trust law and the law where the trustee exercises his 
authority over trust property, as a bank or an insurance company or a 
lawyer; somebody in a probate proceeding. And, the report should 
indicate this special responsibility that we exercise in the course of 
legislation, and legislative acts to our Indian trust. 

So, I would hope that we would point out the deviations that we 
have from traditional trust law and point out also the obvious con- 
flicts of interest that are here when we have the administrator of Indian 
law exercising the same trust responsibilities that in the case of a trustee 
would be actionable before a court. 

I think this is a very delicate and important area of discussion. 
I haven't been able to read some of the material but as I hear you 
outline it, I just feel that probably — and I know that both Lloyd 
and the chairman will agree with me — that these are areas we are 
discussing and arguing about on the floor of Congress from time to 
time. 

Mr. Hall. I would agree wholeheartedly with} r ou, Senator. You are 
absolutely correct that it is not consistent with all common law 
principles of trust as we know it in the law. 

There are certain elements that are common but it is a unique 
relationship and that relationship should be set forth ver}^ clearly 
and I would expect that this chapter would. 

Chairman Abourezk. Is this the chapter we have in this notebook, 
is this what the draft looks like ; in other words, if it is not changed, 
this is what will appear in the final Commission report? 

Mr. Hall. No. 

Chairman Abourezk. What will? 

Mr. Hall. This is intended as a very, very brief suggestion of what 
is going to be in there, but the chapter itself has not been drafted and 
shall not be drafted at least the way we are operating now, until we 
have guidance from the Commission with respect to the principles 
under which that would be drafted. 

And, it would deal with basically the five subject areas that are in 
here: The nature of the trust, the trust property, to what it runs, the 
beneficiary of the trust, and the various roles of the executive agencies, 
the judiciary, and Congress. 

Chairman Abourezk. All right, sir. 

You are asking the Commission now — you set down on paper a 
series of concepts. You are asking the Commission now to either 
approve or disapprove these concepts, and after that time you will 
undertake to write the first draft then? 



32 



Mr. Hall. That is correct, and of course, that is when the Com- 
mission would take a look at that first draft. 
Chairman Abourezk. OK. 

Let me ask you about the length of your first draft, and this will 
be true with all of these. I want to admonish that you can't make this 
thing too lengthy — neither can you leave out anything that is impor- 
tant. 

Congressman Meeds. What if those are mutually exclusive? 

Chairman Abourezk. I would suggest those of you that are doing 
the drafting get a book on word economy and I am not saying that 
you haven't done so here, Gil, I'm just saying that writing skill is 
going to be very, very important when you finally do that because you 
can put people to sleep. Yet, you want to make certain ever} 7 thing 
is in it. 

Mr. Hall. That's true. As a matter of fact I've gotten the comment 
personally with respect to this chapter asking how I could sum up 
several thousand pages of task force reports in several pages and I 
said, "Because I did," and I use as few words as possible. 

Chairman Abourezk. You have to. 

Mr. Hall. Right. 

Chairman Abourezk. Unless there are many more comments at 
the outset, do you want to start in 

One other thing, and I think the same thing ought to be true with 
each chapter, and I would like the Commission to comment on this 
if they want to, the same thing ought to be true with each chapter 
as it is with the entire report. The recommendations ought to come 
first and then follow that with your findings of fact and so on. 

Mr. Hall. OK. 

Chairman Abourezk. That should be done, Ernie Stevens, with 
every chapter, unless the Commissioners think it ought be done 
otherwise. 

Jake? 

Mr. Whitecrow. Taking a look at the vast responsibilities that 
we have with these reports, we do have those reports that have been 
submitted by the various task forces along with their findings. I, 
know that each and every one of us have gone through these task 
force reports, but I think it would be most appropriate from a 
standpoint of this Commission to go through these reports, recom- 
mendation by recommendation and discuss those recommendations. 

Chairman Abourezk. That is what I intended to do. 

Mr. Whitecrow. OK. 

Chairman Abourezk. Any other comment on the location, on 
the recommendations themselves? 
If not — go ahead, Lloyd. 

Congressman Meeds. Mr. Chairman, that may well be a good 
suggestion toward the final report, but I see the format here is back- 
ground or findings and then recommendations. Could we follow that 
procedure today at least in our discussion? 

Chairman Abourezk. Yes; it doesn't hurt in the discussion; it 
doesn't matter. I'm just saying when you do the final draft. 

Congressman Meeds. In terms of a final report and who is going 
to read a final report and what part of it they are going to read, I 



33 



think the recommendations should be first, too. That is supported 
by the findings and background. 

But, I see that it is not in that form today and it might be easier 
to follow for us. 

Chairman Abourezk. I think that's true. 

Congressman Meeds. At least those of us, hopefully only one, 
who has not had an opportunity to read this. 
Chairman Abourezk. OK. 

Do you want to start at the beginning then, Gil? 

Mr. Hall. Now again, on page 2, you find the first statement 
of findings and the recommendations from the task forces. That's 
what it is, it is from the task forces. 

Now, this is not synthesized by my own ideas. It's a summariza- 
tion. It is intended to be summarization 

Chairman Abourezk. Can I stop you a minute? Does anybody 
else feel like it's warm in here or is it just me? Has anybody gone to 
see the thermostat man? 

OK. 

Mr. Hall. In order to save time, if it is agreeable with the Com- 
mission, I'll just start with page 2 and in a sentence or two, character- 
ize the findings on that page, and unless there are questions, I'll just 
go through it that way. 

Chairman Abourezk. That's a good way to do it. 

Mr. Hall. OK. 

The essence of that general finding is that the origin of the Federal 
trust responsibility rests in international law and in treaties, statu- 
tory law, and Federal judicial decisions. 

It is a concept that predates the formation of the United States in 
that it appears in colonial agreements between Indians, and England, 
Spain, France, and the Dutch. 

Despite this long history, though, of the Federal-Indian trust rela- 
tionship there is still disagreement as to precisely what it means. 

I think it is a fair characterization of the task force findings that 
the Federal trust responsibility and Indian self-determination are not 
necessarily contradictory policies at all. You can have self-determina- 
tion and still have a permanent trust responsibility toward the 
Indians. That can come about because the trust responsibility does 
not mean control of Indian resources and Indian lives, it means 
protection. It means an assurance of their survival. 

Congressman Meeds. Could I, in the findings, just get some more 
of this historic background and rationale for No. 2. 

"Their lands and property shall never be taken from them without 
their consent." What is the background and basis for that? 

Mr. Hall. That is a direct quote, I believe. 

Congressman Meeds. From the Northwest Ordinance? 

Mr. Hall. From the Northwest Ordinance. That's correct, and 
that is placed in there because four of the task force reports felt that 
the Northwest Ordinance was an excellent starting point for some 
appreciation of what trust responsibility is. 

Congressman Meeds. Do you feel the Northwest Ordinance is 
binding on the 13 Original Colonies and now on the 50 States? 

Mr. Hall. I do, yes. 



34 



Congressman Meeds. As a moral or as a legal obligation? 

Mr. Hall. I think as 

Congressman Meeds. Or both? 

Mr. Hall. I think as both moral and legal, with the caviat, of 
course, of congressional plenary power. There may very well be some 
modification in exactly how the responsibility is carried out but I 
don't think that necessarily changes the legal responsibility. 

Congressman Meeds. No, I assume you would feel that means 
that Indian lands cannot be taken by condemnation by the Federal 
Government? 

Mr. Hall. No, I don't think it necessarily means that. I think 
there is room for condemnation — we are not talking so much about 
whether it can or cannot be done but rather the process by which 
it is done. 

It should be done with complete participation in a process on the 
part of the Indian tribes, plus the possibility of allowing for an 
exchange of lands rather than merely offering money for condemned 
land, thereby not diminishing the Indian land base. This is important 
because since 1934 approximately V/ 2 million acres of Indian lands 
have been lost through Government condemnation. 

Congressman Meeds. Well laying aside for the moment the au- 
thority of the State to condemn, and I think you and I would both 
agree that Congress does have plenary authority over Indians, the 
Congress can in effect condemn Indian lands by simply passing a 
statute. You get the question of taking the fifth amendment and other 
things, but I think you would agree with that statement. 

All right. Unless I am mistaken, the Congress and for instance, the 
Bureau of Land Management or the Department of Defense can 
condemn without specific congressional authority, State lands for the 
common defense of the Nation for instance. 

Would you agree with that? 

Mr. Hall. Yes. 

Congressman Meeds. Why then should Indian land be any different 
than State land as opposed at least to condemnation by the Federal 
Government of State land? 

Mr. Hall: Because there is no trust relationship between the 
Federal Government and the States. Their relationship is set forth in 
the Constitution which does not speak to any sort of unique relation- 
ship between the States and Federal Government. Historically, there 
is such a relationship between Indian tribes and the Federal Govern- 
ment and that requires that Indian lands be treated differently from 
other lands. 

Congressman Meeds. Do you believe the Federal Government 
should not, because of that trust repsonsibility, allow them to condemn 
Indian lands, trust lands? 

Mr. Hall. The Federal Government or the States? 

Congressman Meeds. The Federal Government. 

Mr. Hall. Whether the Federal Government can condemn Indian 
lands? 

Congressman Meeds. Yes. 

Mr. Hall. I think it can do so, yes. 

Chairman Abourezk. I think he is asking: Should it be able to do 
so? 



35 



Congressman Meeds. I think there is some question about it 
myself, and I think that is one of the things we ought to resolve in 
this Commission. 

Mr. Hall. Do you want to respond to that? 

Mr. Taylor. I would like to just make a brief comment to that. 

I am Pete Taylor and I am a member of the staff. 

Commissioner, we have a recommendation further in this report as 
it is developing that would deal with the problem of condemnation 
of lands. 

My recollection of the loss of land through condemnation proceed- 
ings since 1934 is that it is roughly in the area of 1,800,000 acres. 

Congressman Meeds. That is my understanding too. 

Mr. Taylor. But the land loss through condemnation proceedings 
has been rather monumental. 

I don't believe that we can so restrict the power of the Govern- 
ment that they cannot condemn lands in the future. I know that some 
people would like to see that as a policy but the solution that my task 
force suggested was that first of all, all Federal condemnation laws 
be made subserviant to the law which we are proposing. 

The law which we are proposing is that for every acre of land that 
would be condemned, the Corp of Engineers, or whoever it is, must, 
in turn, condemn a similar number of acres of non-Indian land and 
turn that over to the tribes so that there will be no further shrinkage 
of tribal land base. 

To me, that is in keeping with simple principles of fundamental 
fairness and it carries out the so-called — the declared congressional 
policy protecting Indian land bases and seeing that they don't shrink 
any further. 

I am sorry to say that the Federal land acquisition practices over 
the past 40 years have been a mockery of the declared principle, when 
we really examine the facts; and I am sure everyone here would really 
agree with this. 

Congressman Meeds. Then No. 2 would not in any way put this 
Commission on record as believing that there should not be at least 
some method for condemnation of Indian lands, assuming it is a fair 
process. 

Mr. Hall. That's correct. 

Mr. Taylor. There must be some disagreement on that. I think 
I would see it the same way Gil has. I think the principles on that 
northwest ordinance — in fact, every time we condemn a parcel of 
land, condemnation by itself says it was taken involuntarily. 

So, there may be some area for discussion of just what is meant 
there. 

Congressman Meeds. That is the thing that bothered me, the 
whole concept of condemnation is that it is acquisition by a procedure 
in which you don't have a willing buyer and a willing seller or a willing 
giver. 

Therefore, it is not voluntary. 

Mr. Taylor. If we gave this offsetting acquisition of land to the 
Indians to compensate for what we are taking involuntarily, perhaps 
that would constitute a compliance with this commitment that lands 
are not being taken without consent; because it is being continually 
replenished. 



36 

Congressman Meeds. I don't want the record to indicte that I am 
agreeing with you that that is the only way the Federal Government 
can condemn Indian lands. My personal opinion is that the Federal 
Government ought to be able to condemn Indian lands the same as it 
can my lands or the State's lands. 

Now, there is a disagreement here. 

CnAiRMAN Abourezk. May I interject, Lloyd? 

It seems to me you could handle that somewhat better because this 
statement does, you know, leave a lot of questions unanswered if you 
leave it just as it is. Wouldn't it be better to say that it is going to be 
the policy of the Government to no longer erode the Indian land base, 
add then wouldn't that leave room, if there is a necessary condemna- 
tion that must take place, for some kind of replacement of the land. 

Now most non-Indians — I think this is a fairly accurate statement, 
are not happy with the condemnation of their property; somehow stay 
willing to accept money for it, and in some cases, even an exchange of 
land. 

But, because of the great concern of the Indian people over the 
erosion of their land base, it is easily understandable that they would 
want that replaced in the event there is a necessary condemnation, 
so couldn't you change the language and accomplish what you want? 

What does the rest of the Commission think about that? 

Mr. Whitecrow. Mr. Chairman, I would like to speak to this trust 
responsibility question in that I have always wondered where does 
trust responsibility begin and end. 

From a standpoint of the treaty relationships with tribes and/or 
other legal relationships that are in existence, a trust responsibility, 
as I see it, requires the Federal Government to provide the protection 
of the land holdings of a tribe and its tribal members. 

Also, it provides for those employees of the Federal Government to 
administer this trust responsibility at every level. I think if we do 
anything with this, we are going to have to be assured that it is worked 
in such a manner so that every employee involved in the delivery and 
the application of trust responsibility fully understands what his 
responsibilities are as an employee of the Federal Government. 

For instance, recently I am aware of one particular instance whereby 
a tribal member wanted to sell her land. She requested that the Bureau 
of Indian Affairs go through the process of selling her land for her. 
The Bureau appraised her land at $6,800, a 40-acre tract of land as I 
recall; and as she went on the open market, and seeking bids of her 
own, she received almost $1,000 per acre for her land. 

Now to me, this was a violation of trust responsibilit}^ of the 
Federal Government. And it would also indicate mismanagement in 
this particular aspect. 

So, I would think, if we make this approach, we should certainly 
guarantee these treaty rights and the protection of our tribal rights, 
so that there would be no infringement from the state upon treaty 
obligations of the Federal Government. 

I personally have had many opportunities in the past several years 
to make presentations in regard to this and I have had some people 
ask me, "Well, how long do you think the Federal Government 
should continue wiping your nose as an Indian?" And, I tell them 
that I don't think the Federal Government needs to wipe my nose as 



37 



an Indian; but I do feel that the Federal Government is responsible 
to live up to their treaty obligations, to give all Indians the oppor- 
tunity of developing as we choose, under the Constitution of the 
United States, and under the protection of the treaty rights. 

Then I usually end up my conversation with these people in asking 
them how long did you expect the word of the Federal Government to 
be good, and I would hope that we all look for the Federal Govern- 
ment's word to be good for as long as we have a nation. 

So I think this trust responsibility is a very grave issue and I think 
we need to lay it down as a Commission, a very solid base for the 
future, because this might be the last opportunity we will ever have 
to approach this question. 

Thank you. 

Senator Metcalf. Mr. Chairman, when you get a patent from the 
Federal Government it says that you have this land to hold forever, 
just the same as the language of some treaties, and the next day the 
Federal Government can come out and condemn that land for a 
highway or a road or a Corp of Engineers dam, anything of the sort. 

I think that we are dealing with a special sort of situation here, where 
the Indians are very much concerned about their land, their land base, 
the land that has actually been left to them. 

A few }^ears ago I fought a bill, and fight similar propositions still — 
that when the Federal Government takes any land under the sustained 
}deld of forestry provision, it would provide additional land to the 
person or the lumber company in compensation. Originally that bill 
provided that they could go into the Federal courts, for instance, and 
acquire some forestry land and that would take the place of that sus- 
tained yield operation. 

I don't deviate from my opposition to that proposition, that by and 
large, even though we say to somebody that this is yours to have and 
to hold forever, we could compensate the landowners, as the chair- 
man has said, by monetary payments. 

Nevertheless, it seems to me that there is some little difference 
here in trying to preserve the little land that is left to our Indian 
community, but I would certainly not want to take away completely 
from the Federal Government, or say that we should deny from Con- 
gress the opportunity to either legislate or delegate, the right to take 
some of the land for a higher, public purpose. 

Nevertheless, I would abandon my customary opposition to com- 
pensation b} r land in the special Indian situation. I would hope that 
something along the line that the chairman has suggested, that we 
would say, we would not erode the Indian land base and we would 
try to replace land with other land of equivalent value or something 
of that sort when the Federal Government takes Indian land. 

Although, I am not abandoning the proposition that insofar as 
taking land from non-Indian corporations or something of that sort, 
we compensate them with monetary compensation. 

But I would hate to go as far as suggested here. I think the chairman 
has made a strong suggestion that we try to preserve the Indian 
land base and at the same time prevent erosion of it, but we should 
get permission in the greater public interest to take certain Indian 
lands and compensate them with other lands. 

Chairman Abourezk. Lloyd? 







38 



Congressman Meeds. Mr. Chairman, I find myself in agreement 
with some of what the gentleman from Montana, the gentleman from 
South Dakota has said, and certainly recognize and also believe that 
there should be no erosion of the Indian land base; but again, I hate 
to restrict the sovereignty of the Federal Government to deal with 
the Indians and Indian lands in any different way than it can deal 
with State lands for instance. 

And I would suggest that perhaps the staff could grant a recom- 
mended condemnation procedure to be used and utilized in any 
instance by any department or agency when condemnation was 
contemplated of Indian lands in which the principle is set forth that 
there is a desire by the Federal Government not to erode the Indian 
land base, and that all steps be taken which will allow tradeoffs or 
compensation in like land or similar land; if that is possible. 

But if it is not possible, I do not want the Federal Government 
limited to condemnation only when it can replace the land. 

Chairman Abourezk. Charles — yes, Commissioner Borbridge? 

Commissioner Borbridge. Mr. Chairman, in examining this 
entire question, I rather come from the other end of things. 
& I think that in part, understandably, we have sought to analyze 
the possible impact in terms of the restriction of the power of the 
sovereign. I think that we cannot argue as to the specific powers 
that the sovereign is able to exercise. 

However, I see an overling theme here. In looking at the findings 
I see it as No. 1, and as such it deserves repetition: the utmost good 
faith shall always be observed toward the Indians. I really have no 
difficulty in accepting point 2 as an outgrowth of point 3. Their lands 
and property shall never be taken from them without their consent. 

We agree that there is a special relationship between the native 
Americans and the Federal Government which, in my view, tran- 
scends and is important to the exercise of the power of that sovereign. 
The U.S. Government needs to admit at this point that there is a 
specific origin of this special relationship existing between native 
Americans and the Federal Government. If we, at this point, as a 
Commission advance a recommendation that there should not be an 
erosion of the land base of the native Americans, I think that it is 
important that we be able to demonstrate that such a concept or 
such a principle if adopted as policy, was derived from the course of 
history and from the Indian treaties, Federal statutes, and judicial 
decisions. 

I think it is quite important that the native Americans be able to 
point not only to the fact that if we do come out with a proposition 
that the land base should not be eroded there is a reason for this which 
is historic and goes far beyond our present feelings here as a Commis- 
sion. It is important that we should go on record as stating that the 
above should be a policy because it is firmly based on rights that are 
derived from the Federal trust relationship and are derived in turn 
from the treaties with the Indians, statutes and judicial decisions. 

I would be hopeful, therefore, in the process of our developing such 
a recommended policy that it might be considered under point 2. 

Point 2 should not be considered without reference to the rights 
which preexisted. On these rights, we base the recommendation that 
we are considering, namely "that the land base should not be eroded." 



39 



I think it is quite important that the two not be separated. 

Mr. Wilkinson. Mr. Chairman, if I might first 01 all make clear 
what recommendation 2 on page 2 is. 

The staff has taken all of the findings of the task forces and has 
come up with consensus task force findings simply as background for 
the Commission. What is on page 2 is not a staff recommendation to 
the Commission at this time. This is an indication of some of the dir- 
ferent matters the different task forces have studied. 

Staff will later be recommending a consent requirement to the 
Commission. The staff recommendations are at the end of each chapter 
and begin here on page 18. So, perhaps it would be helpful for the 
Commission fully to appreciate that this passage is not a recommenda- 
tion of the consent requirement. This is simply a statement of what the 
Northwest Ordinance 

Chairman Abourezk. Let me ask you this, Charlie, do the staff 
recommendations come anywhere near the task force recommenda- 
tions? 

Mr. Wilkinson. What I was going to say, however, is this is a 
statement of the Northwest Ordinance. 
Chairman Abourezk. I understand that. 

Mr. Wilkinson. Well, later on we have a task force statement that 
does include a consent requirement but that is at the end. 
This is background information. 
Chairman Abourezk. All right. 

Well this has been presented to the Commission as a finding which 
we either adopt or don't adopt. Now are we wrong in that notion? 

Mr. Hall. What we are asking for, Senator, is on page 20. Those 
are the six principles we are looking at and No. 4 goes to the question 
we are discussing. 

Chairman Abourezk. Why don't we then shift, like the Dallas 
Cowboys do occasionally and let's take up what we have to deal with. 

In other words, we need from the staff, let me make it very clear 
to the staff, we need to be presented by the staff the issues we have 
to decide, and I don't think it is fair to bring anything else up in 
front of the Commission except the matters that we have to decide 
and so, therefore, if you direct us to a page that you say you are going 
to write your final draft on the report on or your first draft on, that 
is the one we want to deal with. And, if you don't direct us to it we 
assume that is not going to be in the report. 

We have to assume that because we are not going to let you put 
anything in the report that we don't pass on as a commission. 

So, if you say that this is just out of the Northwest Ordinance and 
that you are not going to write it in anyway, I wish you would have 
told us 

Mr. Hall. I'm sorry. 

Chairman Abourezk. That's all right. 

Mr. Hall. We were reversing the process there and considering 
findings first. 

Chairman Abourezk. We just want to make you feel guilty. 
Mr. Hall. Let me clarify then. 

Page 20, "Recommended Commission Action." There are six 
items. Those are the ones we are asking for a vote on. 



40 



Chairman Abourezk. Now these are going to be the recommenda- 
tions if we adopt them, right, starting on page 20? 

Mr. Alexander. Yes. At this point, what we are asking — and 
these are derived from the task forces and from other information — 
are the adoption of these general principles. 

If you adopt those or some variation of those, our next step would 
be, we think, and that is what we ask in the very last part of it, page 
21, is to go back through and come up with specific recommendations 
and a draft of the text for you to then reconsider at your next sitting, 
or your January sitting. 

Chairman Abourezk. That is fine. 

Now, what will the text look like; it will have recommendations, 
No. 1? 

Mr. Alexander. Your suggestion was, and that was within our 
thinking, to start off with the recommendations and to have a text 
section that discusses the law, the testimony and input from Indian 
country and others. That would follow that as a supporting 
documentation. 

Chairman Abourezk. All right. 

Now you also put in the backup material to the recommendations. 
Mr. Alexander. Yes. 

Chairman Abourezk. Just in the event that the Commission 
decides to vote against the task force recommendation, you would 
also state then, in the backup material, that although testimony and 
research could bring only one conclusion, that the Commission decided 
it should be otherwise. 

I think it should be clear. It should be made clear that way, that 
in fact it was a Commission action and not a task force action. Of, if 
it agrees, if the Commission agrees with the task force, that ought to 
be stated as well on these major points. 

Now, does that sound good to the members of the Commission? 

Congressman Meeds. Could you restate that? 

Chairman Abourezk. What I said was, if we decide to overrule a 
task force or a staff recommendation, assuming the staff recommenda- 
tions have adequate documentation and backup material, that 
should be so stated in the report. 

Is that fair? 

All right. So, why don't you start with what the general thrust of 
your drafted chapter will be so that we can discuss that and tell you 
whether you are right or not. 

Mr. Hall. OK. 

No. 1, on page 20, the "United States Trust Responsibility to 
American Indians" is an established legal obligation which requires 
the Federal Government to protect and enhance Indian resources and 
tribal self-government. This includes the duty to provide whatever 
services are necessary for such protection and enhancement. 

That would be a principle or a modification of a principle that would 
guide us in drafting that portion of the chapter dealing with 

Chairman Abourezk. All right. 

Now the second sentence of that paragraph; what services are you 
talking about? 

Mr. Hall. Well, we are not suggesting there, I think, that we 
itemize the services that number one requires. We are suggesting 
that there are some services that are required of the Federal Govern- 



41 



ment pursuant to their trust obligations and those are specifically 
related to the Indian resources and land and self-government. 
Chairman Abourezk. Give us an example. 

Mr. Hall. I think a good deal of the services, for example, that 
now are being provided by Martin Seneca's office in BIA is an obvious 
one: Technical expertise and assistance with regard to preventing 
land erosion, development of mineral rights, forest management, and 
others. 

I would think that would include also services like those in section 
104 of Public Law 93-938, which are intended to stabilize and 
strengthen tribal government. 

Chairman Abourezk. What is that specifically? 

Mr. Hall. You ought to address that. 

Mr. Alexander. Those are the moneys of 638 which replaced the 
tribal government development funds that were utilized previously 
to strengthen the operations and the mechanics of operating tribal 
government — records, assistance, whatever, those types of funds. 

Chairman Abourezk. Give us some more examples of the services 
you have in mind. 

Mr. Alexander. The economic development, technical assistance 
moneys, the Indian Finance Act and its declarational policy provides 
a basis for enhancing and developing tribal government and tribal 
resources consistent with the self-sufficiency concept which is found 
within 93-580. 

Chairman Abourezk. What is in 93-580? 

Mr. Alexander. In the preamble is a statement, which I would 
gather is congressional policy, that one of the purposes of the Com- 
mission is to enhance tribal self-sufficiency and Indian Finance Act 
and other congressional declarations have provided us with guidance 
in defining what types of services that go to protecting tribal resources 
and enhancing and developing those resources; both in the govern- 
mental sense and in the land-natural resources component. 

I am not sure if that answers your question. 

Chairman Abourezk. Well, yes. Some of it. 

Any other questions? 

Congressman Meeds. I have a similar question, Mr. Chairman. 

Let me give you an example, and I know there is some question 
about tribal members and food stamps and things like that, but I am 
just using this as an example. 

Assuming that because of the income level of a member residing on 
a reservation, he would, as would any other person, be entitled to 
receive food stamps. Then let's assume that the tribe applied for and 
got a nutritional program through some other program to upgrade 
the nutritional standards of the entire tribe; and to make it work it 
would be necessary that all people in the tribe participate. By the 
last part of No. 2, am I to understand that the member would be 
able to turn down one or the other of those — whichever he or she 
chose? 

Mr. Alexander. Well, this is what we would consider the concept 
of dual entitlement. 

Congressman Meeds. I have no problem with dual entitlement. 
We have certainly thrashed this out in the Alaskan Native Claims 
Settlement Act. 



42 



I have no problem with dual entitlement except that when as a 
member of an organization, when that organization participates, 
then I don't think you are entitled to dual entitlement in some other 
program. 

I want to be assured that you are not intending to cover that kind 
of situation. 

Mr. Alexander. To use the example that you gave us, food stamps 
and a nutritional program, I think this gets us back to why we say 
it is an evolving concept and so much of the trust relationship depends 
on the dependency status and these notions may change as economics 
and situations change. 

In a current situation where a food stamp program is generally 
acknowledged to be not totally sufficient to meet all needs, there 
would be nothing inconsistent whatsoever with a dual entitlement to 
both programs. 

Now, in a situation, if we can project it hopefully with a nutritional 
pattern in Indian country, it is sufficient. Then the Federal Govern- 
ment's obligation under the trust may in fact shift in terms of what is 
needed with respect to nutrition or food stamps, with the Indian 
citizen as part of its U.S. or State citizenship is entitled to under the 
14th amendment is a completely separate item. 

If he meets those standards or she meets those standards under 
those categorical programs, they are entitled. 

Congressman Meeds. I don't have any problem with what you 
said, none whatsoever, and perhaps I can clarify my position by 
asking you why is it necessary to enter the word "citizen," use the words 
"or which his tribe may receive," on the same basis as any other 
governmental unit? 

Mr. Alexander. Because the trust relationship is conceived of as 
arising from treaties and dependency status between one political 
unit with another political unit and running through the tribal gov- 
ernmental structure to the Indian citizen in terms of the trust 
relationship. 

Now in the draft, the several pages that precede this draft, there is 
talk about the prime trust relationship and other components of the 
trust relationship. 

What we were talking about, just now in the food stamp example, 
is something that may in fact change. It hasn't yet but it is a de- 
pendency status through the course of dealings that in many situa- 
tions gives rise to special needs in education and health and social 
services. Those needs may not exist forever in time. 

The basic prime components of the trust relationship that we are 
talking about in the other component which relates to the permanency 
of tribal government, the protection of the land resource and the 
protection of tribal government, institutions do not change as they 
may change in the operational sense of what moneys are required, 
what particular governmental actions might be required to protect 
those attributes in litigation. 

But, they do not change conceptually. The facts do not alter that 
necessarily. And, that is how we have defined the two baseline com- 
ponents here. 

Congressman Meeds. Could you say U.S. citizenship or as a mem- 
ber of an Indian tribe? 



43 



You see, what I do not want to get into is a situation where as a 
governmental unit, a tribe is entitled to certain things and then an 
individual Indian says, "The hell with that. I want to take it over here 
somewhere," and ruins the operation of the tribal thing. 

Mr. Alexander. I have no problem with the language that you 
suggest. The only thing that I would reemphasize, and in case I have 
not made it clear, is the notion of dual entitlement. 

Congressman Meeds. No problem. 

Mr. Alexander. OK. 

Congressman Meeds. I think Indians are entitled to treaty rights, 
to the rights of trust responsibility to be exercised, and to rights as 
U.S. citizens. I don't in any way want to impinge on that. 

Mr. Alexander. Thank you. 

Mr. Borbridge. As I understand it then, the change which is 
proposed for consideration would have no adverse impact on the 
principle which is being advanced ; and that is tribal status conferring 
on an individual's basic rights which are alluded to in part 2. 

Congressman Meeds. That is right. Not in my view. 

Mr. Borbridge. OK. 

Congressman Meeds. And yet, will avoid the problem that I had 
at least tried to articulate. 

Any further discussion of the numbered recommendations 1 through 

6? 

Ms. Deer. I just wanted to say that in my opinion this will greatly 
enhance the understanding among everyone concerned with this whole 
trust concept, that I think many people are unfamiliar with the fact 
that there has been mismanagement of the trust and I feel that if we 
adopt these basic principles and it is clearly understood by all con- 
cerned that it will save a great deal of litigation and dollars for every- 
one in future years. 

Congressman Meeds. Further discussion of items 1 through 6? 

Mr. Whitecrow. I would like to call the Commission's attention 
to No. 3, whereas the trust responsibility is a legal duty required of 
all Federal agencies and instrumentalities. There should be one prime 
agent of the trust. 

Currently, the Department of Interior is charged with insuring that 
the trust is carried out faithfully. I think one of the bigger problems 
that we have had in the past is the fact that so many different people 
are defining trust responsibility and many of them have actually 
defined trust responsibility as to mean control; and I think we need 
to really get into this aspect of it to be sure that we have a deviation 
between what the trust responsibility is, what legally binding trust 
responsibility is, and what control is. 

Now, are we covering that aspect of it? 

Mr. Alexander. Commissioner Whitecrow, what we set out here 
are principles that hopefully we can integrate in specific findings and 
recommendations. 

We have a number of very specific recommendations that will 
become apparent particularly in the tribal government area which 
defines in some great detail the specific problem that you have ad- 
dressed and makes a number of recommendations on what should be 
the scope of the Secretary's (or wherever that authority should reside) 
power with respect to the tribe, what options are open to the tribe, 



44 



and perhaps, some suggestions in relationship to negotiations of the 
trust component. 

We are very specific on that in Chapter 6. 

Mr. Whitecrow. OK. 

I am fearful of the fact that we may find those responsibilities, that 
definition of responsibilities, someplace within the report and I think 
that is one of the major issues that we have here, the actual definition 
of what a trust responsibility is by an employee out there in the field, 
actually functioning on a day-by-day basis. 

As an example, we had an individual within our community in the 
past 2 weeks whereby we had discovered a man or a family cutting 
wood on tribally-owned land and we had a Bureau employee who 
refused to do anything about it because he said, "Those people may 
have a shotgun." 

Now, where does that trust responsibility begin and end and I 
think we need to define that from the standpoint of this report. 

Mr. Alexander. The example }^ou give is but just one. Every 
field hearing that I sat in on has numerous examples of specific prob- 
lems and there are recommendations that will be coming up to hope- 
fully deal with those problems. 

Mr. Taylor, if you will, has some comments on your point. 

Mr. Taylor. Commissioner, we do deal with this question of the 
secretarial control in chapter 6 on tribal government which we may 
or may not get to this afternoon, I'm not sure. 

However, on the issue you are raising, what chapter 6 is doing is 
limiting the power of the Secretary and his control. It is not getting to 
the essence of the problem you are raising now, and I think that per- 
haps we need an additional paragraph here under this trust responsibil- 
ity thing. 

We are talking about the trust responsibility here, but I really believe 
that the only way this trust responsibility is ever going to be adequately 
carried out by the U.S. Government, whatever agency it chooses, 
is if there are rather fixed principles of liability against the United 
States for the violation of the trust. 

The instance you are talking about, where trespassers come on 
trust land, steal 3^our timber, you notify the Bureau of Indian Affairs; 
there is a clear responsibility to protect that asset and yet, no action 
is taken. 

Now, the Bureau is hampered because it doesn't have the personnel 
to afford this protection, but the reason it doesn't have the personnel 
is because there is no squeeze on the United States where these 
violations occur. 

If liability is going to be attached for these failures to protect trust 
assets, I believe the Bureau and OMB will put proper budget requests 
in front of Congress to carry out these things. 

So, my suggestion, or something I think ought to be discussed right 
now, is the possibility of adding a seventh paragraph here dealing with 
liability on the United States for the breach of these trust obligations. 

Chairman Abourezk. Well, that brings up a question. I think — 
I'm trying to find the number here. That should come in No. 5, 
paragraph 5. 

Well, let me go back just a minute, before we get down to five. 
Jake, were you done? 
Mr. Whitecrow. Yes. 



45 



Chairman Abourezk. I wonder if it isn't a mistake to say — well, 
actually, I guess you don't say it, you say, "Currently the Department 
of the Interior" — I would keep that probably as one prime agent 
of the trust because otherwise it would be contradictory to the other 
parts where you are recommending that the Indian Bureau be taken 
out of the Department. But I see that is only a parenthetical reference. 

Mr. Hall. If we take some other action which would not leave the 
responsibility resting with the Interior, we would strike that relation 
and make it consistent. 

Chairman Abourezk. OK. 

And also, before we get down to No. 5, if — -I'm just talking about 
procedure now — -so far as how you write the actual recommendation 
itself, and we are not worried about the backup material for purposes 
of this discussion right now. 

The recommendations, I believe, ought to be in a form that if there 
is a bill needed to be drafted, then the Commission and Congress will 
know from reading that recommendation that it will have to go into 
legislative form. Or, if it is something that can be done by Executive 
order or a general policy statement, that's how the recommendation 
ought to read. 

In other words, just as an example, your recommendation probably 
ought to read — -one of the recommendations — -ought to read the U.S. 
Government should adopt a policy, a policy that such and such and 
such and such is true, or that the U.S. Congress should enact legis- 
lation that such and such will take place, or the President should sign 
an Executive order dictating the following. 

Does that make sense to everybody? 

So that we will very clearly know exactly what you're recom- 
mending — there should be no ambiguity. 
Mr. Alexander. No problem. 
Chairman Abourezk. All right. 

Congressman Meeds. Mr. Chairman, before we get quickly by 
No. 4, let's take on that knotty problem right now, shall we? 

Now, I notice that there is an enlargement in the general statement 
of principle contained in No. 1 and in the implementation of No. 4. 
If I had trouble with No. 1, I've sure got trouble with No. 4, haven't 
I? 

Could someone tell me what nontreaty rights are to be protected 
and not taken without the consent of the holder? 
What are nontreaty rights? 

Mr. Wilkinson. Well, if I might speak to that, Congressman, I 
think the present law on abrogation of treaty rights and other tribal 
rights has gotten to the point where it is almost completely clear. 
And it is very close to recommendation No. 4, although there is a 
difference that I will point out. 

But first, I do want to say the condemnation of Indian lands has 
definitely been treated differently by the courts than has condemnation 
of non-Indian land. If my land or your land is to be condemned, it 
is treated differently. 

Congressman Meeds. I am aware of that. 

Mr. Wilkinson. And the courts seem to require an express state- 
ment by Congress. In other words, if this Congress gives the Army 
Corps of Engineers general authority to condemn land in the West, 



82-749— 77— VOL 4 4 



46 



that doesn't give them authority to condemn Indian land. Non- 
Indian land, yes, but not Indian land. 

Congressman Meeds. Some circumstances, it has required three- 
quarters consent of the people involved and the tribe. 

Mr. Wilkinson. That's right. 

Now, when we say nontreaty rights, we are talking about a very 
important concept that has also been recognized in the cases which is 
that the courts are no longer looking just to treaties to determine 
basic Indian rights. There are many, many cases now which extend the 
trust relationship to Executive orders, to agreement reservations which 
have found hunting and fishing rights in agreements as well as in 
treaties. So the law, which in our judgment is clear now, and which we 
are asking this Commission to recognize, is not just treaty law. 

Much of the law started with treaty law but it has now been ex- 
panded into other areas, such as agreements, statutes and Executive 
orders. And we think that the language "non treaty rights" is very, 
very important because there are many Indian tribes who don't live 
on treaty reservations. 

The courts are respecting those tribal rights just as they are treaty 
rights, and we are asking for this Commission to recognize those non- 
treaty rights specifically. 

Congressman Meeds. Well, tribes don't have to live on reserva- 
tions to have treat}?- rights. 

Mr. Wilkinson. That's right. 

Congressman Meeds. So merely because they don't live on reserva- 
tions is no reason they should have to have nontreaty rights rather 
than treaty rights, is it? 

Mr. Wilkinson. Well, I don't necessarily even mean to limit it to 
reservations. But you are speaking of the situation in which a tribe 
has rights, whether they are Executive order, treaty, agreement or 
statute. And those rights are recognized as part of the trust relation- 
ship, not b}^ law but through consent 

Congressman Meeds. Could you give me some examples of those 
please? 

Mr. Wilkinson. I think hunting and fishing rights are a classic 
example. The right to hold land is a good example. I think many of the 
benefits that have been discussed 

Congressman Meeds. What hunting and fishing rights are there 
that are not treaty rights? 

Mr. Wilkinson. Well, Antoine against Washington, a 1975 case, 
involved rights by agreement. 

Congressman Meeds. By Executive? 

Mr. Wilkinson. No, by an agreement ratified by Congress. 

Congressman Meeds. Well, I don't have any problems with those, 
you know, if they are ratified by Congress or anything like that. 

But, if we adopt No. 4 now, we are saying that there shall be no 
condemnation of Indian land by the Fedeial Government or anyone 
else without the consent of the tribe. 

We are saying, No. 2, any other treaty rights which may not be 
rights in land which can also be subject to condemnation of citizens. 

For instance, if I have a business right, it can be condemned and 
we're saying that cannot be done now with Indian tribes or individuals. 
And, they have certain unspecified nontreaty rights which are the 
kind you described that 



47 



Mr. Wilkinson. They could bo reserved rights also. 

Congressman Meeds. Well, I would hope that those are treaty 
rights. Reserved rights are treaty rights as Judge Bolt will tell you. 

Mr. Wilkinson. Yes, but it is very important. 

Congressman Meeds. I have no problem with that either. 

Mr. Wilkinson. Well, I guess I should say that treaties are one 
way in which tribes can lose rights, and if rights are not given up in a 
treaty, they retain those rights. 

Congressman Meeds. They are retained, exactly. 

Mr. Wilkinson. For instance, basic rights of self-government are 
not given to a tribe through a treaty. They are rights which a tribe 
always had. 

Congressman Meeds. Or given through IRA. 
Mr. Wilkinson. That's right. 

In other words, these rights preexisted the formation of this union. 
Indian tribes were sovereigns. The law is very clear, and there is no 
more important principle in Indian law. Felix Cohen stated it exactly 
this way, that Indian tribes are sovereign. They are governments and 
they retain all sovereign governmental rights unless those rights are 
taken away by treaty or by the express act of Congress. 

Tribes do obtain some very, very important rights by treaties. But 
an equally important doctrine is that tribes have sovereign rights and 
if they don't give them up by treaty they continue to keep those 
rights. 

Congressman Meeds. The same concept as the 13 States retained 
all rights which they did not give to the Federal Government? 

Mr. Wilkinson. It's very similar, that's right. I think that is a good 
analogy. 

Congressman Meeds. Well, Charlie, I don't know who else might 
feel that Indian rights ought to be subject to the same kind of con- 
demnation procedures, compensation, everything else, fair hearing, all 
the protections of the 5th and 14th amendments and all other amend- 
ments ; but I feel they ought to be the same. 

If we accept that, if we accept No. 4, we are denying that that is a 
true statement. 

Mr. Wilkinson. Mr. Congressman I think you know I'm going to 
say this: The courts do not now recognize that those rights are the 
same. 

The courts have very clearly said that in the area of condemnation 
Indians have more rights. Therefore, if we now say that Indian rights 
are going to be the same, we are taking away very important rights 
from tribes. 

Congressman Meeds. Very important interpretations of the courts. 
Mr. Wilkinson. The courts said we are interpreting the existence 
of rights. 

Chairman Abourezk. You are beyond condemnation now. You are 
into other — fishing, hunting rights and all. Water rights? 
Congressman Meeds. Oh, yes. 
Mr. Wilkinson. Yes. 

Senator Metcalf. Mr. Chairman, may I ask a question? Do these 
nontreaty rights include the right to pollute the air or the right to 
pollute the water on Indian reservations to the detriment of people 
who live off the Indian reservations? 



48 



Mr. Wilkinson. Mr. Senator, I think you have opened a very 
important area of inquiry and it is a fair question. 

Let me say this: The real question in the area of air and water 
pollution is whether this Congress is going to assume, as it does with 
the States, that the tribes can properly control their own environment. 

In other words, what tribes really have is not the right to pollute 
the air or water, but rather as governments, the right to regulate on 
their own reservations to be certain that the air and water isn't 
polluted 

Chairman Abourezk. May I interrupt, Charlie, at that, before 
you go on any further. Did I hear you just say that the Federal 
Government doesn't regulate the States in those regards? 

Mr. Wilkinson. No, I didn't. And I think the Senator from his 
State will appreciate that. I think it is literally true, that the cleanest 
air and the cleanest water we have in this entire country are on 
Indian reservations. 

Senator Metcalf. Despite the applause, I would modify that to 
some of the cleanest air and some of the most polluted water comes 
from Indian reservations and some of the most polluted air comes 
from Indian reservations. 

What about such things as other resources? For 4 years Congress 
has worried about strip mining and reclamation and restoration of 
resources. In all of the legislation, we have never had a congressional 
action to control the Indians' resources, except the general delegation 
of power that we have given to the Secretary of Interior. 

What if Congress said that the Indians in their leases, in their 
administration of their land, had to abide by the same laws and 
regulations that we impose on non-Indian land. Would that be a 
violation of nontreaty rights? 

Mr. Wilkinson. Well, there is no question that Congress does 
have the power to do that. There is no question. 

Mr. Hall. It's already been done to some extent. 

Congressman Meeds. Whether some administrative agency has 
the right to condemn Indian lands is questionable, but there is no 
question that Congress can condemn Indian land. 

Mr. Wilkixson. That's light. 

Congressman Meeds. There is a question whether the Corp of 

Engineers can condemn Indian land without the consent of the 

Senator Metcalf. But Congress can delegate that. 
Congressman Meeds. Not if we adopt No. 4. 

Senator Metcalf. I know. I'm just trying to make an inquiry 
here into areas of nontreaty rights opened by the very distinguished 
Congressman from Washington. Is it a nontreaty right to allow an 
Indian tribe or a foreign government to pollute water or pollute air or to 
pollute the general environment and cut off waterflow or is that an 
excepted right. 

Mr. Hall. Senator, Congress to some extent has already addressed 
that in the National Environmental Protection Act which applies 
to tribes as well as States. The Department of Interior and the 
tribes have spent a great deal of time preparing impact statements 
pursuant to that act. 

Senator Metcalf. Do }^ou agree with that? 



49 



Mr. Hall. We haven't reached a staff position on that, to be 
honest with you. 

Mr. Taylor. Senator, I would like to respond to this problem too. 
It seems to me that in 1973 the Congress started on the right track 
legislatively on how to handle these conflicting matters between 
different sovereigns, the tribes and the States; one State vis-a-vis 
another State too. 

It was the Land Use Planning Act that passed the Senate, and 
it included provisions in that act to authorize tribes to regulate 
land use within reservation boundaries. 

It also required that their land use policy some way accommodate 
the plans of the State; also vice versa; that the plans had to — and the 
State had to in some way — accommodate the tribes. I think that's 
an extremely enlightened legislative approach to the problem and 
it incorporates the kind of principles that I think Federal legislation 
needs to show — a recognition of tribes as governments and a recogni- 
tion that they have regulatory powers. 

Bringing them into the intergovernmental structure here in these 
things like environmental protection, et cetera. Charlie Wilkinson 
already mentioned it. And when powers are going to be delegated to 
the States to regulate clean water and clean air, the same powers 
ought to be delegated to the tribes within the reservation boundaries. 

Tribes have as much obligation to act responsibly as States do, 
but the Congress, in the contemplation of tribes, as governments, 
must take them into account as governments. 

Senator Metcalf. Now let me ask you another question in view 
of the fact that its been alleged that the Indians have the cleanest 
air and the cleanest water. 

Do they have a non treaty right to protect themselves from State 
and Federal pollution of air and water on their reservations without 
an environmental protection agency or without special Federal 
congressional legislation? 

Mr. Wilkinson. The basic point we would make Senator, if I do 
understand you correctly, is that the question of regulation on the 
reservation should be first of all a tribal matter. 

Congress has the power to act, if Congress decides that there are 
serious problems on a reservation. But it is not a State matter. I 
think that's the key point. * v ^ 1 

Senator Metcalf. I think that's important and it is what I'm 
trying to bring out. Isn't tribal authority' 1 to act in areas on the 
reservation analogous to the State authority to act in areas under 
the State jurisdiction? Isn't that correct? 

Mr. Wilkinson. As a very general matter, yes, they are both 
separate governments and the tribe does have that authority on the 
reservation; yes. 

Mr. Dial. I wanted to say that it seems to me that we are beating 
this point of trust responsibility to death today and what I believe 
the men want to really get to is an overview of some, you know, 
general recommendations and we will hammer out these details later. 

So, I wonder if we're not giving too much time to this today. That's 
what I have to say, and since I haven't said very much, may I also 
say that I hope that we will always include the 1787 paragraph of 



50 



utmost good faith, because this is a good reminder to the Congress 
and to the people of the United States that we've gone astray many 
occasions when it comes to the treatment of Indians. 

Congressman Meeds. Mr. Chairman, I will be glad to pass this for 
the time, you know, without adopting it or rejecting it, if the Com- 
mission thinks we spent too much time on it. 

However, I think it is a very, very important question, and a kind 
of key question as to where this Commission goes. We get ultimately 
to, and perhaps we should have started discussion on, the question of 
sovereignty — because that is what we are dealing with. 

If we take a position which I know is judicially supported and 
which has been enunciated by members of the staff, we will be treating 
Indian tribes as complete sovereigns, with the whole bundle of sticks 
called sovereignty. The gentleman from Montana's concern is correct. 
They can regulate the waters on the reservations; they can regulate 
air, pollution, just like the Canadians can regulate their race horses 
at the border. 

They may regulate activity, except as might be altered by treaty 
if we accept this position. I don't think that's a position we want to 
get in in this Commission, because if that's the kind of recommenda- 
tion we're going to make, we're going to find ourselves in real problems 
with the Congress down the road. 

Now, I believe that the maximum amount of sovereignty which 
can be given and utilized to tribes ought to be either reserved or 
given to the tribes, whichever way you look at it. But there is a 
sovereign power, which is — I hate to use the word "superior" — above 
not only Indian tribes, but States. That sovereign is the United 
States and the sovereignty of Indian tribes and Indian people has to 
be subject to the sovereign power of the United States. If we find 
ourselves or get ourselves either knowingly or inadvertently in some 
other posture, this report is not going to go very far. It's not going to 
go very far. I know a lot of you people out there believe and properly 
so with all your hearts and minds and desires that Indian tribes are 
complete sovereigns and indeed the courts have in many instances 
treated them almost in that sense. 

I am aware of that. But when we get down to the final question 
of what is workable in this Nation, we cannot have 244 or 366 or how 
many other reservations there are of sovereign nations within a 
sovereign nation. We cannot have it. We cannot have it and still 
function as the United States of America. 

Now, I hate to be in the position of reminding or at least admonishing 
that that is the situation, but I fully believe that if there is total 
sovereignty within Indian tribes, that sovereignty has to be subject 
to the higher sovereignty of the United States. 

If we don't enunciate that principle, and as I say, I'm perfectly 
willing to pass it over because it's a big issue on which I think we 
could spend days and probably not reach any proper solution, it is 
a key to whether or not our report is going to go anywhere, as I see it. 

Chairman Abourezk. The way I read No. 4, correct me if I'm 
wrong in this, I think perhaps some of the staff comments have gone 
somewhat beyond what the language of itself is. But I read it to say 
that it is a statement that the U.S. Government will stop abrogating 
treaties; that it will be adopted as a policy statement for that purpose, 



51 



not limited to that purpose, but that's one statement that No. 4 
makes. 

Am I wrong in that? 

Mr. Wilkinson. That's one statement it makes, that's correct. 
Chairman Adourezk. Then second, if they do abrogate a treaty, 
it's got to be done with the consent of the tribe itself, right? 
Mr. Wilkinson. That's correct. 

Chairman Abourezk. And, third, you are saying that if the tribe 
approves of the abrogation, then the abrogation has to be ratified 
by Congress. 

Mr. Wilkinson. That's correct. 

Senator, if I could say one sentence to clarify one thing. The 
consent requirement is probably not existing law. The express action 
by Congress probably is the existing law. 

Chairman Abourezk. Right. 

Mr. Wilkinson. So the consent is really what would be new in the 
kind of analysis you are talking of. 
Chairman Abourezk. Right. 

Now, the law as it now stands is that if Congress should adopt this 
as a policy, of course, it can abrogate this policy later on by another 
congressional act. A succeeding act overrules a previous act; is that 
correct? 

Mr. Wilkinson. That's correct. 
Chairman Abourezk. All right. 

I would like to make one other statement before we go on to the 
other Commission members. It is my belief that this report should be 
a statement of the Indian people as to what the American Indian 
policy ought to be and I don't say that we ought to say in this state- 
ment unreasonable things, things that are totally unreasonable. 

I think we should say in this report things that reasonable men can 
differ upon. 

Now, Congressman Meeds has a vigorous difference with the con- 
cept that, for example, the treaty rights cannot be abrogated by a 
congressional act. 

I believe they can be abrogated by a congress ! onal act, they have 
been, they can, and they will continue to be. Wliatever policy is 
adopted can be abrogated by a later congressional act, Lloyd. 

Mr. Wilkinson. Many Indian people are deeply saddened by this, 
but I think the law is now clear that Congress can abrogate Indian 
treaties. 

Chairman Abourezk. And if this were adopted legislatively to- 
morrow, it could be changed the next day. 
Mr. Wilkinson. That's correct. 

Senator Metcalf. They would have to be compensated. 
Chairman Abourezk. That's the case now, in fact. That doesn't 
change at all. 

Mr. Wilkinson. That's right. They are entitled to be compensated. 

Chairman Abourezk. What I'm saying now, the final point I'm 
trying to make, is that the report, the Commission report, ought to be, 
in every instance that it can be, a statement of Indian policy by the 
Indian people, and if the statement was by Congressman Meeds, that 
it may not sell, well, ma}be very well, it may not in Congress, but my 



52 



tendency is to be against trying to limit what the report says at this 
point. 

I mean there may be things that I may not agree with, but I wonder 
if it might not be better to allow that statement to be made. 

The Indian community is on record as saying what it wants and 
the Congress can either adopt that or reject that. Now, I'm not saying 
that we ought to go into a lot of crazy stuff and just say well, this is, 
you know, everybod}^ there are 800,000 Indians, we ought to have 
800,000 individual opinions and you can't do that, of course. 

But to the extent that we can, I wonder if it might not be a good 
thing, and I would like to hear from some of the other Commissioners 
on that viewpoint as well. 

Mr. Borbridge. Mr. Chairman 

Chairman Abourezk. I'm sorry. I guess, Louis is first. 

Mr. Bruce. I only wanted to respond to Congressman Meeds' 
statement. We have about 800,000, in this country, different kinds of 
governments. What's wrong with adding maybe 400 more. You were 
talking against that. 

Congressman Meeds. None of those 800,000 have complete 
sovereignty. 

Mr. Wilkinson. But, Congressman Meeds, I want to say this, 
that there is nothing, absolutely nothing in the staff recommendations, 
or to my knowledge in virtually any of the staff reports, that would 
suggest that those sovereigns are not subject to congressional power. 

Congressman Meeds. Without their consent? 

Mr. Wilkinson. In this case, it involves taking away some rights 
without consent, yes. But, there is no suggestion in existing law that 
the tribes are not subject to plenary power. And plenary power is the 
notion that is accepted in the task force reports. 

Congressman Meeds. There is this in No. 4, that they shall not 
abrogate it or in any way infringe upon without the consent of the 
affected Indian tribe. That is not now the present state of the law. 

Mr. Wilkinson. That's correct. 

Congressman Meeds. They can be now subject to condemnation 
by act of Congress, not by administrative agency or there is some 
question about that but presumptively not. 

And, what I am saying is that No. 1, they are not only to be subject 
to the plenary power of the Congress without consent, but they also 
ought to be subject as all other American citizens are and as all other 
entities are to a higher power, which is the U.S. Government through 
its agencies and administrative boards and other things. 

Chairman Abourezk. Well, I think it is implicit in the law, but I 
would have no objections to making it explicit. 

I mean, it's there anyhow and then, if it would be better, it might 
be better to make that as a statement that it's recognized that the 
Congress has plenary powers and that any act of Congress obviously 
will supercede another act. 

I think that is what Congressman Meeds is saying, but it ought to 
be made a clear statement. 

Congressman Meeds. Mr. Chairman, what I'm saying is I don't 
think we ought to take an act which we will clearly supersede down 
the road somewhere. We've done that quite a bit in our history, as 
most of these people can tell you. 



53 



Chairman Abourezk. John Borbridge? 

Mr. Borbridge. Having participated with the assistance of very 
good congressional friends present here, in the lobbying related 
to the settlement of the Alaskan Native Claim Settlement Act, I 
certainly am in a position to recognize that the sovereign has certain 
rights relative to Native Americans. Certainly one of the very im- 
portant findings of the court in the case of Tee-Hit-Ton Indians v. 
United States was the right of the sovereign, if it chooses, to unilat- 
erally extinguish Indian title. 

But, I am not suggesting that we challenge whether or not the 
sovereign has that authority. Instead, I suggest that even the sovereign 
itself be subject to certain standards of conduct, and that the sovereign, 
with all of its power, should recognize whenever it has acted in con- 
travention of basic Indian rights. We are saying, therefore, even the 
exercise of such basic sovereign powers must be sensitive to the causes 
of justice and humanity as they relate to the recognition of the abo- 
riginal rights of our first citizens. Thus, the Government has a higher 
obligation: it has a responsibility, when exercising these rights, to 
recognize what these prior existing rights are. 

Thus, the sovereign may, in fact, proceed to the condemnation of 
land. But it ought to have before it, in capital letters, a clear recogni- 
tion that, for the Indians, this is a far different proposition and that 
such compensation is not compensation in terms of the Indian. It's 
compensation couched in terms developed by the non-Indian world. 

The only compensation we Native Americans really recognize that 
is basic to our roots is an acre for an acre. And even then, we may 
suffer some dimunition of our base. I do agree that the attorneys could 
very effectively argue with me in terms of what the rights of the sov- 
ereign are, but I say the sovereign, the Government, has a clear 
obligation and that the obligation of the Commission is to identify 
these areas where it has clearly fallen short of meeting those obligations. 

The fault of the Federal Government, as reflected in the history of 
this country, is that it has failed to consistently recognize these rights. 
It has failed as a matter of policy to recognize and to acknowledge its 
obligations. Thus, we must help guide the sovereign in the just exercise 
of its power and evaluate its impact. 

I would suggest then that we have a twofold responsibility : one, to 
recognize what the nature of these rights as they relate to Native 
Americans are and what the nature of the rights of the Indians are. 

Two, to so phrase our recommendations that we have a higher 
standard of conduct in the exercise by the Government of its sovereign 
rights. Then I think we will be fulfilling more accurately what I, at 
least individually, recognize to be the primary responsibility of this 
Commission. 

Chairman Abourezk. Louie? 

Mr. Bruce. I just wanted to ask a question here. On page 20 we are 
looking at the second paragraph: "Congress often contributes to the 
misunderstanding of the Federal trust responsibility." And then it 
goes on to say, sometimes inadvertently prevents Federal agencies 
from administering it in the best interest of Indians." And, it goes on 
to say some more, "even to the extent where a matter for appro- 
priations for Indian programs indirectly encourage agencies to restrict 
eligibility for their trust services and programs." 



54 



All right. If we are saying all of that, then we get down to item 
three. Are we saying then that we are recommending really that the 
Department of the Interior be the responsible agency? 

Mr. Hall. The ultimate responsibility still rests with Congress but 
m terms of administration of the trust it may rest with one agency. The 
law is clear now, I think, that the trust responsibility applies to the 
U S. Government generally, but it may be administered principally by 
one agency. 

That's all it says, but still, it rests with Congress in terms of carrying 
it out. 

Mr. Bruce. OK. I hope we're not overlooking that one item there. 
Mr. Hall. That could very well be clarified, Commissioner, yes. 
That's a good point. 
Mr. Bruce. OK. 

Mr. Whitecrow. In all of the material that I have read thus far, I 
can find nothing in that that really insinuates or indicates that 
Indian tribes are in effect wanting to be totally sovereign. That is hav- 
ing sovereignty to the same point of pressures that the Federal Gov- 
ernment has. I could find nothing there that would indicate this kind of 
an approach. 

I would like to also state that coming from the state of confusion and 
the State of Oklahoma, I have really had serious doubts in my rela- 
tionships with American Indian governments as to whether or not we 
have any sanit}^ at all, because the area of Indian country that I come 
from, the State has certainly put us down to something similar to a 
civic organization. 

Our tribal governments have really been put down to this particular 
standpoint. When in effect we begin looking at the jurisdiction ques- 
tion in the State of Oklahoma and as the education that I have been 
able to receive through these many months of reading, I really feel 
today that the State of Oklahoma is in somewhat of a questionable 
status insofar as jurisdiction is concerned, and the sovereignty of the 
tribes should possibly be aligned with the sovereignty of the State of 
Oklahoma. 

I do not feel that anything that we have in this transcript today 
really infringes upon the sovereignty of the United States of America. I 
do feel that it brings the sovereignty of the tribes up to the same 
level, at least, with that sovereignty that a state recognizes and prac- 
tices. I'm in complete concurrence with Commissioner Borbridge. I 
certainly feel that the Federal Government has the authority to make 
the final decision, and I think the Congress has exhibited this attitude 
in its past, and I feel it will continue exhibiting it. 

But, I think this particular report from the American Indian Policy 
Review Commission should very definitely display the thoughts and 
feelings of the American Indian, because the American Indians are the 
people that have experienced 150 to 200 years of injustice and in- 
equities in its treatment. 

Then after this report is submitted, then let us go through the polit- 
ical processes to get that legislation passed that needs to be legislated. 

Thank you. 

Chairman Abourezk. Other comments? 

Well, the staff is very clear as to what they should put in there, 
right? 



55 



Mr. Alexander. Can I respond to something that you and Com- 
missioner Whitecrow have just said that might cast some light on 
provision 4 — which is the consent provision which has engendered so 
much conversation. 

You both said that this should reflect the views of the Indian 
country and the Indian tribes. This is a reflection of those views. 
That consent provision is a position almost word for word, taken by 
NCAI in its recent Salt Lake City convention. It is supported by the 
tribal reports that have been submitted to us and it has been sup- 
ported in principle by the Indian input that we have had and as staff, 
we felt it incumbent to put it in the statement that we presented to 
you because that is what Indian country has told us. 

Chairman Abourezk. All right. 

Would you, then, in your draft, include this language, include a 
statement that it is recognized that the Congress has ultimate au- 
thority, which is a true fact, and then there will be further action at 
the time you put it in your draft. Then Congressman Meeds and any- 
body else — I think you knew this, but anyhow, everyone will have 
an opportunity to write a minority report on any section in the event 
his point of view is not carried or if he feels strongly enough about it 
to write a minority report. 

Congressman Meeds. Mr. Chairman, we are not passing or reject- 
ing this as a completed work at this time, are we? 

Chairman Abourezk. No, no, no. I am merely suggesting to the 
staff that they include it. You know, there is some controversy about 
it. It ought to be included as one of the parts of the final report which 
will be acted upon then. 

Congressman Meeds. Well, then, may I also have the opportunity 
to write a suggested subpart 4? 

Chairman Abourezk. Absolutely. 

Congressman Meeds. Which we can either vote up or down. 
Chairman Abourezk. That's right. We can work it around so we 
can vote it as an amendment or vote it as an alternative or whatever. 
That's right. 

OK. In No. 5, I wanted to ask a question following up on Senator 
Metcalf's question. A statement, I think, ought to go in No. 5. He 
asked at the outset, if you recall, that there ought to be some sort of 
distinction made between how the Federal trust is carried out toward 
the Indian people and how a regular trustee undertakes his 
responsibility. 

I think, perhaps, in No. 5, that will be a place to set out that 
difference. 

Mr. Hall. No problem at all, sir. 

Chairman Abourezk. On No. 6, I don't know if a distinction is 
important or not, but when you say the United States holds bare 
legal title to Indian trust lands, it just seems to me that it might be 
better to say the United States holds all the trust title and that 
equitable title is held by the Indian tribes. 

Would that be a more accurate reflection of the existing 

Mr. Hall. Well, I think they are both saying the same thing. I 
think everyone here would agree that No. 6 is an accurate statement 
of the law as it is now and it is intended to just emphasize that the 
Federal Government is a trustee and that the owner of the land 



56 



Chairman Abourezk. Well, my interpretation of legal title, 
whether it's bare or fully clothed, is that that is total title. So, it 
doesn't seem to follow logically to say that to me, at least. 

So, unless there is objection to it, I would just as soon you would 
say that they hold trust title to it. 

Congressman Meeds. Mr. Chairman, I don't know about South 
Dakota, but in Washington, the words legal title and equitable title 
are words of art, and I think they say exactly what these gentlemen 
mean to say. I agree with them that the Federal Government holds 
legal title, which is bare, and equitable title in any kind of trust 
relationship where the title is held by the trustee. It is bare legal title 
and the equitable title is held by the persons for whom the trust runs. 

These are words of art as I understand it. 

Mr. Hall. That's correct, sir. 

Chairman Abourezk. Well, apparently this was drafted by people 
up in your part of the country. That's not the way I would do it in 
South Dakota. 

How about if you said you hold bare legal title in trust, so we take 
in both sections of the United States. Well, you might want to work 
on that some more, come up with something that would be acceptable 
to everybody. 

Mr. Hall. As Congressman Meeds said, they are words of art 
and this principle is intended to make it clear that we are not talking 
about complete control over Indian land. We are only talking about 
legal title. 

Chairman Abourezk. OK. Anybody else? 

Ms. Deer. To summarize my thoughts and feelings on this, we'll 
get down to the question of a sovereignty and jurisdiction and the 
amount of the degree that the tribes want; and speaking on behalf of 
myself, I don't think of many Indian tribes across the country, the 
tribes want more sovereignty and more jurisdiction. 

Mr. Taylor. Mr. Chairman, we did have one question about 
whether a provision should be added in here with respect to the lia- 
bility of the trustee. 

Chairman Abourezk. What would you put in in that regard? 

Mr. Taylor. It would be a provision at the end of paragraph 5. 
It would be, I suppose, in the nature of the U.S. Tort Claims Act. It 
would be a waiver of the immunity of the United States authorizing 
suits against it for damages sustained by a breach of the trust 
obligation. 

Well, there would also be an attorney fee provision. I'm not sure 
whether that would come here or later in this book. 

Chairman Abourezk. I have already had one attorney's fee bill 
named after me this year. 

Mr. Taylor. While I have the microphone, I would like to add just 
one more thing on this item that you raised, Mr. Meeds, regarding 
condemnation. 

My inclination is in your direction. I don't think I favor putting 
language into recommendations that come out of here that clearly 
are going to be violated within the next 2 or 3 years. 

That is why I like the idea of a condemnation statute that requires, 
as Mr. Borbridge says, an acre for acre compensation. I would rather 



57 



build in machinery that will be able to work and still meet trust 
obligations. 

Congressman Meeds. Well, I'll just advise you, Peter, I'm going to 
draft or have drafted a substitute for that which would set forth a 
vehicle for condemnation which would clearly set that up; and some 
other things. However, condemnation would be utilized only in rare 
instances, and with the benefit of the person to whom the trust runs in 
line and with the requirement that there be replacement of land and/or 
other rights which might be taken, where those rights can be compen- 
sated in kind. 

Chairman Abourezk. I wonder also if it might not be a good idea 
to deal with the concept of sovereignty. 

You really dance all around it in this section. Have } 7 ou got another 
section on it? 

Mr. Alexander. Chapter 6 is rifled through with it. 

Chairman Abourezk. OK. Well, then, I will wait and speaking of 
chapter 6, unless there are other questions or comments, we are ready 
to go to chapter 6. 

Congressman Meeds. Have we been through all the recom- 
mendations? 

Mr. Hall. Yes, sir. 

Congressman Meeds. Just those six. 

Mr. Alexander. Those six. 

The second component of that is that we integrate specific findings 
and recommendations on the basis of those six principles and what in 
effect we have asked you for is guidance based on those six principles 
to adopt, to tell us to proceed on that basis, and so on. 

Congressman Meeds. Well, Mr. Chairman, before we pass this 
area I'd like to ask some questions and make some comments. I have 
not had the opportunity to read all of this, but what I have read 
appears very good. 

I did read the staff summary on the task force report, and as I 
understand it now, your recommendations contain all of the recom- 
mendations which are going to be made with regard to the task force 
No. 1. Is that correct? 

Mr. Alexander. Its bald outlines of consensus and what we have 
filtered out of task force 1, also task force 9 and other materials. 

And, we would follow along the policy guideline with specific types 
of recommendations which may be directed towards Executive action 
or specific legislation or so on. 

Congressman Meeds. So we may find some of the specific recom- 
mendations of task force No. 1 in chapter 6 or 7 or 8 or something 
like that. 

Mr. Hall. Yes, sir. 

Congressman Meeds. May I just ask quickly then, where does the 
establishment of the independent agency for administering Federal 
responsibility occur then down in No. 7, probably? 

Mr. Alexander. Chapter 7, Federal Administration. 

Congressman Meeds. And that then would contain all the recom- 
mendations, if any were accepted with regard to the full-time Secretary 
and the Board of Indian Control and other things which were con- 
tained in task force No. 1. 



58 



Mr. Hall. Yes, sir. I can see alternatives in this chapter also. For 
example, Senator Metcalf's comment about NEPA. There is a task 
force recommendation with regard to NEPA application to reserva- 
tions, and I personally do not agree with it. We may very well end up 
presenting two or three alternatives to the Commission to resolve 
those specific questions. 

Commissioner Whitecrow. I would like to ask — Ernie, have you 
been in a position insofar as indexing the various subject titles in 
this report? 

We seem to be pretty well hung up on trying to determine where and 
in what chapter such and such might be in. I know we've got a table 
of contents by chapter but we don't have any special index by subject 
matter. Do you plan or is it planned to put that kind of an index into 
the report so that anyone picking up the report would be immediately 
able to go to a specific page to make a determination? 

Mr. Stevens. We can do that. Maybe Paul or Gil ought to elaborate 
on it. 

Mr. Alexander. It is our conception of the final report printed 
document that it would be professionally indexed with cross references 
to any subject. 

Commissioner Whitecrow. OK. 

Chairman Abourezk. Any other questions on chapter 5? If not, 
we will take a 5 minute recess before we go to chapter 6. 
[Brief recess.] 

Chairman Abourezk. The Commission will resume its meeting. 

I don't know, Commissioner Deer just suggested we have a motion 
of some sort to get you guys on the way with chapter 5 and with each 
succeeding chapter. I don't know if we necessarily need that, but I 
think in the context of what you have presented to us, and our dis- 
cussion, I think you should feel free then to go ahead and start drafting 
based upon all of the discussions we've had today, and which you 
have given to us; if we didn't object to it, you've got to assume that 
that should be in there. 

Congressman Meeds. Mr. Chairman, could any of the Commission 
members reserve the right to make suggestions to the staff or have 
later amendments or embellishments of what has been said? 

Some of us have not had an opportunity to read all of this. I would 
like to expedite the procedure and I appreciate what the chairman is 
doing, but I would like to have an opportunity to read over all of it 
before I, in effect, pass it except for those things that are already noted. 

Chairman Abourezk. Absolutely, fine. 

Congressman Meeds. I don't want to make a lot more work for the 
staff or anything like that. 

Chairman Abourezk. No; that's very acceptable to the chairman 
and I assume it is acceptable to everybody else. 

OK. You are ready then with chapter 5. Do we need a motion, do 
you think we need something like that? 

Senator Metcalf. Mr. Chairman, in view of the discussion, and I 
think the discussion has been useful, I don't think we need a motion. 
The staff understands some of the questions that have been raised 
and some queries that have been raised and we can go forward and 
see what develops. 



59 



I think all of you understand that there are some problems involved 
here that are minor and some that may go to the Supreme Court. 

Chairman Abourezk. It may not even be possible to form a motion 
of that kind anyhow. 

Senator Metcalf. I don't think it would be advisable right now to 
put such a motion. 

Chairman Abourezk. All right. Then do what you have to do, I 
guess. All right. Chapter 6. 

Let me announce right now that toda}^ we are going to adjourn a 
bit early, at 4:30. There are some of the members who have to do 
other things today and will come back in at 10 o'clock tomorrow 
morning. 

So, chapter 6, tribal government, Pete Taylor and Paul Alexander. 

Mr. Taylor. I would like to introduce one other person who will 
undoubtedly be speaking to the issues of tribal government, Pat Zell, 
who worked on the task force number two report and has also been 
working with the staff formulating some of the issues that impede 
the tribal government in its operation. 

I will start the discussion of chapter 6 by explaining the breakdown 
of that chapter. 

We have a table of contents page at the very front of chapter 6, 
at least I hope it got into all of the Commissioner books. I had to 
insert my own this morning. 

Basically, this is broken into five different sections which we have 
listed A, B, C, D, and E. The first section is legal status of tribal 
government, generally. One of the principal issues under this section 
is tribal sovereignty. 

So, 1 suspect that we will not have finished our conversation by 
4:30. Part B is governing capacity. This section will examine some of 
the typical problems that are plaguing tribal government today. This 
is the area where Dr. Zell will be addressing the problems. 

Part C is tribal jurisdiction. This gets to the ramifications of what 
tribal sovereignty constitutes; and I think, more importantly, where 
the policy of Congress is going to be leading us over the next few years. 

Part D is the tribal justice system and problems associated with the 
justice system, things that need to be done in order to — let's say, 
make it more functional. 

And, part E is economic development. I might say that this book is 
in rather preliminary shape and my inclination is that part E will 
probably be moved farther back to chapter 8 dealing with natural 
resources. The recommendations that we have on legal status generally 
appear on page 9. 

The discussion starts at the very bottom of page 9 and it runs 
through pages 10 and 11. Now I'll briefly go through what the findings 
are, and I would like to reemphasize that these findings are essentially 
taken from task force reports. 

I think this recitation of our findings has to be accepted by the 
Commission as very much preliminary. It is based on summaries 
that were prepared of task force reports. As Paul explained earlier 
this morning, these parenthetical numbers refer to the task force 
report and page number from which that matter was extracted. It is 
not a verbatim statement from the task force report and I think in 



60 



many instances we will have to go back to the reports themselves in 
order to put these findings into proper context. 

But I believe this does generally reflect the shape of the way we 
would expect to develop the chapter. 

Mr. Alexander. The specific action with respect to legal status of 
tribes is found in the staff statement on page 10 which you may wish 
to focus on. 

Mr. Taylor. If the Commissioners would like, I would be happy 
to wait a few minutes while you look at that or I could proceed now. 

Chairman Abourezk. Why don't you proceed. 

Mr. Taylor. All right. Then, I also think I'll throw in a short 
summary of the findings and I will start on page 2 of the chapter. 

Well, I think I have to ask for directions. Do you want me to go 
through shortly the summary of findings or should we go immediately 
to the conclusions? 

Chairman Abourezk. Well, I think it went better and it was more 
clear when you started with the conclusions in chapter 5. It seemed to 
me it went better and we can ask you to back up your conclusions 
with whatever findings there were. 

We assume that your conclusions are based upon valid findings 
right out of the task force reports. 

Mr. Taylor. Yes. 

Congressman Meeds. So we are now discussing recommendations? 

Chairman Abourezk. Yes; I thought, unless you all think it's 
better to do it the other way, I thought he should go through the 
recommendations. We can discuss those rather than go through all 
the findings and discuss those. Does that sound better to everybody; 
it would seem to make more sense that way. 

Congressman Meeds. Reserving the right to go back to the other 
things, of course. 

Chairman Abourezk. Well, yes. That goes without saying. 

Mr. Taylor. Then our discussion part will start on page 10, para- 
graph No. 1. 

The purpose of paragraph No. 1 or the basis of it is to supply an 
explanation of the source of the powers of tribal governments. It gets 
to the very fundamental issues of whether tribes are sovereign. 

The acceptance of that proposition, that tribes are sovereign, it 
seems to me, is beyond question. All of our laws have been tailored on 
the concept that tribes are sovereign. Federal laws applying to the 
tribes have been ones of limitation. 

I think the 1968 Civil Rights Act is a perfect example of that. The 
Termination Acts are a perfect example. Termination Acts do not say 
to tribes you don't exist; what they say is that we are withdrawing 
Federal recognition from your tribe. 

The 1834 Trade and Intercourse Act obviously accepting sover- 
eignty. The 1934 Indian Reorganization Act was premised on sovereignty. 
The question of tribes being sovereign I don't think is a debatable issue. 

What is debatable is what it means. 

Chairman Abourezk. Can I stop you there? 

It is my impression that tribal sovereignty was established in 
probably the first big Supreme Court case — what is it — Cherokee v. 
Georgia or whatever ; what was the name of the case? 



CI 



Mr. Taylor. Worcester v. Georgia and the Cherokee Nation v. 
Georgia. 

Chairman Abourezk. It was about the Cherokee nation. What 
specifically was that holding that — concerning sovereignty? 

Mr. Taylor. You almost catch me flatfooted. It was simply a very 
clear recognition that we have drawn treaties with tribes. We have 
treated them as separate sovereigns, independent nations. We agreed 
to boundaries around reservations. 

It was acknowledged that the reservation of that Indian nation 
was within the boundaries of the State of Georgia, but the basic hold- 
ing of it was that, No. 1, they are separate sovereigns, but the reserva- 
tion is within the State boundaries, but it is virtually extraterritorial 
to the State. The State laws could have no application whatsoever 
within the boundaries of that reservation. 

Now, that doctrine has been eroded and the erosion came in 
McBratney v. Draper — pardon me — U.S. v. McBratney and Draper v. 
U.S. where the Supreme Court accepted the concept that the jurisdic- 
tion of the State reached within reservation boundaries as to offenses 
by one non-Indian against another non-Indian — well, Draper was 
1S96, so in 1832 when Worcester was decided until 1896 when Draper 
was decided, the State of the law was that Indian reservations are 
virtually extraterritorial to a State and not a part of it. 

Essentially, the only right the State had with respect to a reserva- 
tion was a preemptive right of first purchase if the United States 
consented to it and if the tribe consented to it. 

Chairman Abourezk. Well, doesn't that kind of do in your argu- 
ment that the sovereignty of the tribes is inherent? It seems to me 
that the tribes, according to law, draw their sovereignty from both 
Supreme Court decisions and from acts of Congress. Is that correct? 

Mr. Taylor. No; I wouldn't agree to that, Mr. Chairman. The 
point is the tribes draw their power from their own independent 
existence and this is well recognized in case law. In fact, there was a 
case that came up in 1956 called Iron Crow v. Oglala Sioux Tribe. In 
that case, a Pine Ridge Indian was charged with adultery and he 
was up for trial in the tribal courts. 

He took the case to Federal court and challenged the right of the 
tribe to maintain a court at all or write laws that proscribed his 
activity at all. He was a member of the tribe. In the Iron Crow case 
the court found that the powers of the tribe sprang from their inherent 
sovereignty. They were here before the U.S. Constitution was drafted 
or before the first white man came to his country, but the power sprang 
from within the tribe, not from any Federal grant whatsoever. 

The doctrine of sovereignty is that tribes are totally independent. 
In fact, in the Navajo Nation v. Native American Church, decided in 
1959, the court stated that the tribes, in fact, from a legal standpoint, 
enjoy a status superior to that of the State. There is a whole series of 
cases that held that the U.S. Constitution and the 10 amendments 
did not apply to tribes at all. 

The first one was in the late 1800's, Talton v. Mayes, dealing with 
the legality of an indictment in the courts of the Cherokee Nation. 
A five-man grand jury had issued an indictment. Under the U.S. 
Constitution a grand jury is normally comprised of at least six people 



82-749— 77— vol. 4 5 



62 



and this guy was contesting the legality of the indictment, becau < ii 
was only a five-man grand jury, and the court there held that the U.S. 
Constitution does not apply to tribes at all. That was the break- 
through — the imposition of some standards for Federal review is 
what the 1968 Civil Rights Act was all about. 

Chairman Abourezk. But you are also saying in the same state- 
ment that in any conflict relating to the power of tribes, the burden 
shall be upon the opponent to show the act or treaty by which power 
has been taken away from the tribe. 

In other words, you are also recognizing that Congress has virtually 
total power over the tribe to remove whatever sovereignty that 
Congress might want to remove. 

Mr. Taylor. That's correct. 

Chairman Abourezk. Is that recognized in tins? 

Mr. Alexander. This is in a sense, a classic reformulation of the 
principle of Worcester v. Georgia and the principles that are laid down 
by Cohen, and it is not to get very specific to the statement that you 
made previously about the earlier Supreme Court decisions. 

That is a recognition by the U.S. judicial system of the preexisting 
sovereignty. It is not a grant from that judicial system. 

Chairman Abourezk. So, you would say then that the sovereign ty 
which was total can be limited by an act of Congress, and in fact, are 
you saying that is a true legal fact? 

Mr. Alexander. It is the legal fact under United States Law. Now, 
I think it is incumbent upon me to reflect some of the views in Indian 
country: there is a limitation to the U.S. law and that is it is the law 
generally of one party to the conflict. It is not Indian law; it is not 
necessarily international law. The fact of plenary powers and the 
powers of the U.S. Government exist because the U.S. Government 
ultimately is a powerful government, and its own recognition of its 
powers is not necessarily a recognition of powers by the tribes. The 
States, not the tribes, gave the U.S. Government in the Constitutional 
Convention a grant of powers. 

This gets you into treaties somewhat, because there are grants of 
powers from tribes to the Federal Government in some specific areas 
in treaties where treaties can limit the inherent sovereignty, and that 
conception is spoken upon frequently in Indian countries and by 
thinkers in this area. 

I feel it my obligation to report that. 

Commissioner Borbridge. Mr. Chairman, I just want to rephrase 
a basic point so that I correctly perceive what is being said. A little 
while back there seemed to me to be an intimation that the Worcester v. 
Georgia case posed on an example of the derivation of sovereign power 
by the tribes, and I want to be sure that we clarify that was not the 
case, but rather that the sovereignty of the tribes is recognized as one 
which preexisted the formation of the U.S. Government. Thus, if we 
view them in the context of legal decisions derived from litigation, or if 
we examine pertinent legislation, the impact is more one of modifica- 
tion or clarification. These tend to be more limiting than they tend 
to convey to tribes any power which they did not have previously. 

Would this be pretty much what we are seeing here? 

Mr. Taylor. Commissioner, perhaps they cut both ways. The 
judicial decisions that have come down in recent years, at least, I 



63 



wouldn't say, limit tribal powers, but recognize, those powers as they 
are asserted. It is what is leading to many of the jurisdictional ques- 
tions that we will be addressing a little bit later in this chapter. 

I don't think these jurisdictional questions are really that relevant 
to this particular paragraph. 

Commissioner Borbridge. If I may comment there, because if I 
let the attorneys go on too long, then I lose the sense of what I'm 
getting at here. 

What I see here then, to come back specifically to the point, is that 
it doesn't follow that in order for the tribe as a sovereign to exercise 
its power or to have its power implicitly recognized because of its 
current sovereignty, that this power necessarily has to be recognized 
as a consequence of a judicial decision. In many instances, a judicial 
decision does not establish and is not the origin of that power but 
merely recognizes what already exists and what perhaps may be 
legally challenged for the first time. 

Is this essentially correct? 

Mr. Taylor. That's totally correct. 

Commissioner Borbridge. Thank you. 

Chairman Abourezk. The tribes at this point operate not under 
sovereignty but under modified sovereignty, don't they? 
Mr. Taylor. That's correct, Mr. Chairman. 

Chairman Abourezk. If I can remember the definition of sover- 
eignty, that means within the boundaries of that particular sovereign 
the people and its government have total control over what they do 
within that government. 

Nobody from the outside is able to tell them what to do. 

Mr. Taylor. That would be a perfect sovereignty. However, I 
might elaborate on that slightly. Gil Hall was pointing out to me just 
before we started that in fact there are no perfect sovereigns in the 
United States, including the United States. 

The United States derives its power from the grants from the 
States and in the 10th amendment the States withheld considerable 
numbers of powers. So even the United States is not a full sovereign. 

Neither are the States because they gave the Federal Government 
certain powers in the Constitution. 

Chairman Abourezk. But in spite of the fact that they have given 
up powers they are, the States themselves are, perfect sovereignties 
in that they at one time had 100 percent sovereignty and gave up 
part of it to the Federal, whether or not they can get it back. 

Mr. Taylor. That's true. Without getting into the Indian issue, 
I would say that that is true, what you just said. 

Mr. Wilkinson. I think, Mr. Chairman, Congressman Meeds has 
been using an example of sticks in a bundle. I think that really is what 
sovereignty is. The United States doesn't have all the sticks in the 
bundle, the States don't, and the tribes don't either. 

Congressman Meeds. It's just a matter of defining what sticks are 
left which gives us problems. 

Mr. Wilkinson. I am not sure, but I think that is true. I believe 
we will find out as we go along that the law in this area, for the most 
part, is clear. There are unclear areas, but on the whole the question 
of tribal sovereignty is generally as clear as State sovereignty in most 
areas. 



64 



So, there are unclear areas but most areas are clear. 
Congressman Meeds. Well, let me raise one of those unclear areas 
if I may. 

In that first paragraph at questions relating to the powers of tribes, 
the rule should be that tribes have all of the powers of any local 
sovereign. Could somebody define for me a little more what they mean 
by powers of any local sovereign? 

Mr. Taylor. You have probably put your finger now on questions of 
jurisdiction. I would say that this statement is a statement that should 
reflect the policies of Congress in the direction that Federal Indian 
policv is going to pursue. It has been said, particularly with respect to 
the Five Civilized Tribes before the Curtis Act which almost destroyed 
those tribes 

Congressman Meeds. Before what? 

Mr. Taylor. The Curtis Act of 1906. In 1856 the Attorney General 
of the United States had to render an opinion on the tribal jurisdiction 
of the Choctaws over a non-Indian in a civil matter, and he equated 
the jurisdiction of the tribe with that which a State would exercised 
over a person going through the State. 

What he said in that opinion, and what the Supreme Court also said 
in Morris v. Hitchcock which I think was decided around 1906, is that 
before the Court would find that a tribal government was lacking any 
power that would normally be recognized in a normal sovereign, it 
would insist that it be shown by explicit words in a treaty where that 
tribe had given up that power; and that power, the power of a local 
sovereign is general police power, general taxing power, regulatory 
power, and these are the jurisdictional issues that we will be coming 
to in — if I may refer to my outline, in part C. 

It is a part that will be modified by our discussion when we get to 
that point. 

Congressman Meeds. Back to the original statement. We are just 
talking about the — not what is in the bundle of sticks but the — 
generally, the bundle of sticks, the thing called sovereignty and from 
where or how it was derived. And that general principle enunciated in 
Worcester, I believe you said, has never been overruled ; is that a cor- 
rect statement? 

Mr. Taylor. Yes. 

Congressman Meeds. And that is all the first part of that is, down 
to the end of all inherent sovereignty. That is merely a restatement of 
the doctrine in the Worcester case? 

Mr. Taylor. Yes. 

Congressman Meeds. Without regard to what it is. 
Mr. Taylor. That's correct. 

Congressman Meeds. That might have solved determination, how- 
ever, it might be later impinged upon by other factors and other things. 
That's where it came from. 

Mr. Taylor. And down to that point, it's not only reaffirmation of a 
statement of Worcester, but of many, many, many judicial decisions. 

Congressman Meeds. Which have never really been overruled. 

Mr. Taylor. Yes, that's correct. 

Mr. Wharton. For the purposes of analysis and approach to this 
thing, I guess when you come down to analyzing that, when you look 
into the sovereignty of the tribe, the search as to which sticks are 



65 



missing and where you can identify those sticks in that particular way 
and not to find out which sticks are there. 

Congressman Meeds. So we are really getting now to where it is 
kind of a statement of principle. We are now in the second sentence, 
getting into the meat of this thing is what is jurisdiction, what is a 
sovereign, what are the powers of any local sovereign? 

Well, the powers of the drainage district are sovereign in certain 
respects and the powers of the city are sovereign in certain respects, 
and the powers of the State and of the Federal Government are in 
certain respects. So, what do we mean, any local sovereign? 

Mr. Taylor. I think the term local is a legal term and word of art 
just as our discussion was on what trust title means. As the Attorney 
General used it in his Choctaw opinion, I believe it was, it is, I believe, 
the general rule in determining the authority of a "local government." 

Local is really State or its equivalent to the State. The powers of a 
county, the powers of a municipality, are derived from the State. They 
are delegated powers. The State has its powers by virtue of its sov- 
ereignty and that power is all encompassing. It includes zoning, police 
powers, tax, the whole thing. 

Congressman Meeds. So you are talking about in effect the powers 
of the State. When you say local 

Mr. Taylor. Equating them with that, that is correct. 

Congressman Meeds. So that would include the power to tax both 
Indians and non-Indians, the power on reservation lands, fee land or 
trust land, to zone, the power to provide police and fire protection, 
the power to regulate under the police power. You are suggesting that 
we adopt a general statement of purpose that Indian tribes have all 
of those powers on reservations? 

Mr. Taylor. That's correct. 

Congressman Meeds. Even though you know that under the pres- 
ent state of the law, they do not. 

Mr. Taylor. That they are not exercising those powers? 

Congressman Meeds. Well, there are even court interpretations 
which indicate they do not. 

The whole question of zoning, for instance, is up in the air. The 
whole question of taxation is up in the air. 

Mr. Taylor. Well it gets to what Commissioner Borbridge said 
though. There haven't been any judicial decisions saying that the 
tribes do not have power yet. And, you know, it's a question of when 
and whether the Federal court will recognize it. 

Congressman Meeds. And if we adopt this general principle, we 
will say that Indian tribes do have the power to tax, have the power 
to zone, have the power to adopt all regulations necessary for admin- 
istering the police authority on reservation. 

Mr. Taylor. I think, Congressman, in order — I would like to 
keep the discussion at this point, and I understand exactly what you 
are saying, within the context of reservations that are — let's say, 
semiclosed. 

In fact, the Menominee situation, where you have 2,300 Indians 
within the reservation and 300 non-Indians. It seems to me that that 
is an excellent example to be framing our discussion in terms of. 

I realize there are significant problems where we get to reservations 
where little land base is left and perhaps what we need to be talking 



66 



about there are limitations of the geographic application of those 
rules. 

I see Paul shaking his head 

Congressman Meeds. I'm doing the same thing. 

Mr. Taylor. I'm not conceding the point. I am saying the dis- 
cussion will lead us. 

Commissioner Borbridge. Mr. Chairman, if I might comment, 
please. 

I think this is where I have some problems as a layman. I will have 
to give this a lot of thought because, on the one hand, I start with 
what I call my starting point and that is I perceive as a Commissioner 
that what we are dealing with is inherent tribal sovereignty. I think 
history relates quite accurately and quite graphically that there has 
been an erosion of that sovereignty and I might add that it has 
occurred at the instance of a — call it a stronger, more powerful 
Government. 

I don't think there has been a willful, happy giving up of that power 
by the sovereign which in this instance is the tribal governing body. 

Right now, we agree that we are not sure which of these many 
sovereign rights, which I call the inherent rights that a sovereign 
tribe, still has. They still might be a part of the powers that the tribes 
may exercise. We need to be very careful when we say that the Fed- 
eral Government, the Congress, should confer upon the sovereign 
tribal governments, the right to do certain things, because then I 
question whether such a starting point is correct. 

The tribal governing body had sovereignty as an inherent right. 
It seems to me then that it had the right to do these things, and if 
the Congress acts, the Congress acts as to clarify the fact that theso 
rights do exist and perhaps may be exercised for the first time in 
some instances. Part of my layman's perception here is that when 
litigation arises, it generally arises because the tribe is exercising its 
specific power as a sovereign. Litigation, as very often does legisla- 
tion, tends to restrict the exercise of that power, by magnifying it. 

This is just a layman trying to work his way out. 

Mr. Taylor. I think your discussion rises above a layman's 
discussion, Commissioner Borbridge. I would agree fully. 

Congressman Meeds. Lawyers like laymen's discussions. 

Mr. Taylor. I would agree fully with what you just said and by 
this paragraph, I don't think, we are not proposing that that grant 
powers to the tribe, but rather it is a recognition of powers. It 
is a doctrine virtually founded in international law and that's where 
the Federal-Indian law comes out of — these principles of international 
law. 

I think recognition of these principles would help much thinking of 
many people, Congress and Federal administrators and State people, 
you know, if that perception were more clear. But we are only talking 
here about recognition and this rule down here that in any conflict 
where a question of a power of a tribe is drawn, in issue that the burden 
would be on the person questioning the tribal power to show where it 
was taken away. That is a restatement of the position enunciated in 
court decisions and in Felix Cohen's work at page 121. 

Mr. Borbridge. Mr. Chairman, I might say the attorneys are back 
in my good graces. 



67 



Chairman Abourezk. It doesn't take much to keep him happy, I 
guess. 

Congressman Meeds. Well, if we adopt at least the second portion 
of that, however, we are settling the question of what powers, essen- 
tially what powers, what sticks are in the bundle called sovereignty 
for Indian tribes. 

And then, we will include similar powers which states that. 

Mr. Alexander. That is exactly right. 

Congressman Meeds. So that there will be the power to take 
criminal and civil jurisdiction on reservations over Indians and non- 
Indians and to assert all the powers that a State can assert. 

Mr. Taylor. That's correct. 

Congressman Meeds. Now, is that the recommendation of all of 
you people there? 

Mr. Wharton. Subject of course to the plenary power of Congress. 
That is the recommendation. 

Mr. Taylor. Mr. Meeds, I suppose the question comes up, when 
we get over to the jurisdiction issue where we start talking in terms 
of: Did the allotment and opening statutes that Congress passed at 
the turn of the century where the United States issued fee contents 
to surplus Indian land, to the opening of those reservations, to home- 
steading and settlement constitute a taking away of a tribal power? 
That's the context that the legal issues are presently framed in. It 
frankly hasn't been decided in the courts yet, but ultimately, certainly 
what we are recommending, and I think we are all in agreement on this, 
is that the ultimate objective of Federal Indian policy should be to 
put the tribes in a position where, in fact, let's say 20 years from now, 
we could without hesitation say that that's the rule. 

Reacquisition of land base, beefing up tribal governments to the 
point where they really are functioning fully, which they are not 
right now. They have no funds; they have no tax base which virtually 
any government has. On the one hand, we say they are government. 
On the other hand, we say they don't have a single power that a 
government is endowed with and then we turn around and say, see, 
you're so inefficient and so totally dependent. Of course they are 
dependent. They are kept in that state. 

Although, I do feel that once the issues get fully discussed, then we 
are all going to have to begin wondering. But, I go along with what 
D'Arcy McNickle said this morning. We stumbled into this thing. 
Dawes was a good man and led a good movement, but the Dawes 
Act turned out to be horribly disastrous, and, I think, what we are 
doing here is trying to talk about correcting some of the things that 
happened out of that Dawes Act. 

Bringing tribes back to the point where they are, in fact, the govern- 
ment within the reservation and they do, in fact, have all of the powers 
of any local sovereign, and if we frame our discussion on this point, 
not in the context of those reservations that have been so completely 
opened up but rather in the context of the Menominee, 2,300 Indians 
and 300 non-Indians and those 300 non-Indians didn't go in there 
under the Dawes Act, I don't think. 

I think they went in after termination where the tribe was so hard 
pressed for money and had to sell off some land. 



68 



Congressman Meeds. Well, Peter, I'm sure that we would both 
agree that there are degrees of sovereignty which can be properly 
corrected and without impinging on any other rights which may have 
been acquired, rightly or wrongly. There are degrees of sovereignty 
which can be asserted within the general framework of sovereignty 
of the United States and not cause a lot of problems. And there are 
some by some Indian tribes. Clearly the Navajo can utilize many 
more sticks in the bundle than can the Agua Calicnte or some tribe 
that was impacted by civilization and State laws and by a lot of dif- 
ferent things. However, with this general statement we are conferring 
all of those powers on all of them. 

The Yakimas can assert a lot more sovereignty, it seems to me, 
within our framework, than can the Lumbee because the Yakimas 
are not impacted by some of these laws and the mistakes we may have 
made in the past. 

But, I have a question here, too. You equate the powers of local 
sovereign to the powers of the State. Now, the States are subject, 
as someone pointed out here, to prohibitions because they gave away 
certain powers. They are subject to the commerce clause. They are 
subject to public welfare, they are subject to a lot of things whieh 
the Federal Government exercises. 

Are you contending then that tribes are subject to the same prohi- 
bitions or the same grants of power that they have given to the 
Federal sovereign? 

Mr. Alexander. With respect to tribes and the States, I guess 
the first point is that we are not saying by the adoption of this principle 
that we are conferring any power and I have to return to our previous 
statement which is that we are recognizing the state of existing law. 

With respect to States, when you want to define what powers the 
State of New York does not have, you have to look specifically to an 
act of Congress, to the constitution of the State of New York, what 
authority it may have delegated to New York City as opposed to 
other charters that it may have granted to the city of Buffalo. With 
respect to tribes, getting us to the second portion of principle No. 1, 
you have to similarly look, and because of the trust obligation of the 
United States, you have to find what specific delegation by the tribe 
has been made, or by the power of the United States; what specific 
thing has been removed from that tribe, and that, in fact, may vary 
from tribe to tribe. 

Congressman Meeds. Well, let's take an example. I see Lucy 
Covington sitting here. I don't think the Colville specifically gave up 
the right to impede the flow of the Columbia. 

Are you saying that the Colville should have the right to impede the 
flow of the Columbia? Lucy will say that they do have ; isn't that right? 
They are in court right now on it, I think. 

Air. Wilkinson. Well, Congressman Meeds, obviously, it's a ques- 
tion that came out of the blue to us. But to me, the answer is that 
they have as much right as the State of Washington does. The per- 
ception is that the State of Washington isn't going to go out and act 
unreasonably in damming the Columbia and the tribe won't either. 

Congressman Meeds. Indeed, the State of Washington has no right 
to impede the fall of the Columbia because of the commerce clause, 
because it is navigable waters. And I think, to follow your rationale 
of inherent sovereignty, which would include all the sovereignty that 



69 



was not specifically given up, it would allow the Colville to impede 
the flow of the Columbia; I would suggest they still have that right 
under your theory. 

Mr. Wilkinson. No, because Indian tribes are specifically men- 
tioned in the commerce clause. The Congress shall have power to 
regulate commerce among the States, foreign nations and Indian 
tribes. Therefore, the tribes are in the same position as Washington 
and they are subject to superior congressional power also. 

Mr. Alexander. Which gets us to the second part of the statement. 
There is a specific section that was just referred to where the United 
States via its power has acted. 

Congressman Meeds. How do you mean has already impeded the 
flow of the Columbia? 

Mr. Alexander. No, but has taken the authority to act in that area 
and it may take specific court determination and I am not familiar 
with that particular situation, but it may well take court decisions 
to shake out what the specifics are in each individual situation. But 
clearly in the case that you present under the commerce clause, the 
United States has assigned to itself power in this area. 

Chairman Abourezk. I think this is a good point to break off. We 
are a little bit over. 

We will recess until 10 o'clock tomorrow morning. Thank you all. 

[Whereupon the meeting was adjourned at 4:45 p.m., to reconvene 
at 10 a.m., on Saturday, November 20, 1976.] 



MEETINGS OF THE 
AMERICAN INDIAN POLICY REVIEW COMMISSION 



SATURDAY, NOVEMBER 20, 1976 

Washington, D.C. 

Present: Senator James Abourezk, chairman, Congressman Lloyd 
Meeds, vice chairman, Senator Lee Metcalf , Commissioners Ada Deer, 
John Borbridge, Adolph L. Dial, Louis R. Bruce, and Jake Whitecrow, 

Staff: Mr. Ernie Stevens, staff director, Ms. Ernie Ducheneaux, 
administrative assistant. 

Staff members: Paul Alexander, Peter Taylor, Ray Goetting, 
Donald Wharton, Charles Wilkinson, Patricia Zell, and Chuck Peone. 

Chairman Abourezk. The Policy Review Commission will resume 
its session. 

I've got a couple of announcements to make before we start and 
that concerns getting in and out of the building today. It's Saturday. 
The building closes at 1 o'clock. For those people who are going to 
leave and come back in after 1 o'clock today, you will have to use the 
Independence Avenue entrance, which is one floor down and just a 
few steps over that way. 

There will be one of the Commission — I'm sorry, the other way — 
one of the Commission staff people down there identifying people 
who do not have ID cards to get into the building. So, if you come 
back in after 1 o'clock, that is the only door you can get in. 

The cafeteria in the Longworth Building is open today but it 
closes at 1 :30. Yes; it will close at 1 :30. We'll break here about noon, 
so that will give everybody time to eat down there. 

We don't know yet whether we will resume our session tomorrow. 
I guess it depends more on our progress today. What we might do 
tomorrow, is have a 3-hour session from 10 to 1 o'clock and then just 
quit at 1 o'clock and start Monday morning again; so I think we can 
all decide later on whether we feel like coming in tomorrow. It depends 
on our progress today. 

So, have we finished with chapter 6 yet? We're still on it. 

Mr. Taylor. Mr. Chairman, when we concluded yesterday, I 
think we have reached the third sentence of the first paragraph. 

Chairman Abourezk. Third sentence; that's good progress. How 
did we get clear to the third sentence? 

Mr. Taylor. I think very clearly, we are in probably the most 
sensitive and the most vital area of anything that we will be discussing 
in tribal government. 

I suppose from my own perspective, I view it as the most important 
thing we are discussing here this weekend : The power of tribes and 
tribal government, and where we are headed. 



(71) 



72 



Now, we had some conversations after the hearing yesterday, and 
we note a rather notable lack in this paragraph. 

What we are talking about here is the powers of the tribes, and it 
is all tribal government. There is a countertheory that I think is very 
important, from the Federal perspective, and that is that Congress 
has plenary authority over Indian tribes. It is virtually an unre- 
stricted authority. It reaches to the point where judicial decisions have 
upheld the right of Congress to terminate tribes, to even go in and 
tear up a fee patent; a fee that was issued to, I think, all five of the 
civilized tribes. This is the most basic document in all of the Anglo- 
Saxon Law, the fee patent deed. And we simply said it didn't exist 
anymore and we proceeded to allot out the property and the courts 
have upheld that. 

So, when we are talking tribal sovereignty here, we have to re- 
member that ultimately Congress does have plenary power over this 
thing, and if situations start to get out of hand, it is possible always 
for Congress to step in on a case-by-case basis, a tribe-by-tribe 
basis. 

So, I think it's an important thing to keep in mind as we discuss 
this. 

Congressman Meeds. Pete, I'm certainly aware of that. One of 
the reasons — perhaps the major reason that this Commission is func- 
tioning today — is to lay out some legislative guidelines so that there 
is some certaint}', both for Indian people and non-Indians, in dealing 
with these questions that we are considering. If we simply say that 
Congress can step in later, we do nothing but continue the chaos 
that exists today between court decisions and a lack of policy which 
exists at the Federal level with regard to Indians. 

So, it seems to me that this Commission has got to at least establish 
some guidelines as to what Federal legislative policy is with regard to 
tribes and to Indian people so that they can know what their rights 
and prerogatives are and so that other people can be on notice as to 
what those are. 

We certainly agree that Congress has plenary authority and, in the 
absence of the adoption of some of these recommendations, will 
continue to have that authority. But, I still think that we've got to 
do more than exercise that authorit3 T on an ad hoc basis as problems 
arise. 

We have all kinds of problems now and we clearly will have more 
in the future that we ought to lay out some legislative guide- 
lines for 

Mr. Taylor. I think the difficulty, Mr. Meeds, is that we have so 
many different kinds of tribal governments and strengths of tribes 
that are involved here. We do recite that as an introductory paragraph 
further back in jurisdiction, which I think we will probably have to 
turn to. 

Perhaps we can run on through these basic points — and on this 
third sentence in the first paragraph, I understand your reservation 
and your hesitation. In fact, I've got a marginal note here, "I think 
a decision on this sentence should be reserved until we talk about 
jurisdiction." 

But the problems on jurisdiction in these tribes are — the Menom- 
inee situation is an excellent one, as we discussed yesterday. Twenty- 



73 



three hundred Indians within that reservation, 300 non-Tndians. 
That's the kind of a situation, I think, that should govern our initial 
consideration at least. 

Congressman Meeds. And also, a reservation that covers a county. 
The county borders are coterminous with the reservation borders. 

Mr. Taylor. Which is not always the case of course. The Navajo 
traverses three States. 

Congressman Meeds. So you've got some obvious advantages to 
the exercise of more of the powers of government with the Menominee 
than you have with a lot of others and the same with the Navajo. 

Chairman Abourezk. Was that Menominee that was your 
example? 

Mr. Taylor. Yes. 

Chairman Abourezk. There is another example that I want to 
raise too and see if I can get some discussion going on it. 

In South Dakota the Rosebud Reservation now encompasses 
Todd County. Are you familiar with the area out there? 

Mr. Taylor. Vaguely. 

Chairman Abourezk. Todd County is the Rosebud Reservation. 
It's majority Indian population. What used to be an addition to the 
expanded parts of Rosebud Reservation, encompasses Milette 
County, which is probably majority Indian but not overwhelmingly 
Indian, maybe. I'm not even sure, but there are a lot of non-Indian 
people living in Milette County. Tripp County is overwhelmingly 
non-Indian. Gregory County and Lyman County, overwhelmingly 
non-Indian, in fact, Indians in those counties are distinct minorities 
as opposed to Todd County. 

Now a legal defense lawyer for the Indians at Rosebud brought a 
lawsuit a few years back, claiming that the original boundaries of the 
Rosebud Reservation were illegally diminished and, you know, 
putting aside what happened on the sale of the land and how it got 
into the hands of non-Indians, 50, 60 years ago. The fact today is 
that four county case and the issue is, will they be included in the 
Rosebud Reservation boundaries? 

In terms of talking about sovereignty, should it be the policy of 
the Congress to restore sovereignty to places where the Indians do 
not live anymore, but which at one time, were a part of the original 
reservation. 

I would like to hear some comment on that. 

Mr. Alexander. W T ell, task force 4's report in recommendations 
in that area, tend to deal with land requisition and land consolidation 
as a functional, jurisdictional base, regardless of the way the particular 
diminishment case would go on the basis of the treaties, and language 
of specific statutes that opened up the Rosebud Reservation suit. 

The functional has to do, in the view of that task force at least, with 
the requisition and the consolidation of the land base. But, the addi- 
tional point on that in that task force recommendation, is that this 
is something that should be worked out with a mechanism estab- 
lished by Congress between the parties in the area. 

There are perhaps positions that can be reached on what should be, 
for functional tribal purposes, reservation boundaries. But to discuss 
it in total abstractions — not total abstractions, I'll withdraw from 
that — but in broad generalizations where the Rosebud case is different 



74 



from the Sisseton case and is different from each and every reservation 
throughout the Dakotas, changes drastically when you hit the south- 
west and the northwest. It almost requires, almost, a case-by-case 
deliberation. 

The important point that we try to emphasize throughout the 
tribal government section is what the tribe has, if it is ever to come to 
the negotiating table with the county or a State, to define how they 
should cooperate on law enforcement, or who should do what and how 
they should work out tax agreements as tribes in South Dakota have 
in fact done. 

The tribe has such basic governmental powers, that it needs to come 
to the bargaining table with. Otherwise, it has no position at all 
within the negotiation framework. 

Mr. Wharton. There is at least one other position I feel obliged 
to report to you, which I'm sure you are aware, but for the purposes 
of the record, the treaty councils, especially in South Dakota, take 
the position that the only boundaries which are appropriate boundaries, 
are the treaty boundaries and that anything less than that is an 
illegal act of colonization under the United Nations Charter. 

I report that to you as part of the testimony that we have taken in 
treaty country. 

Chairman Abourezk. All right. 

Now, as a practical matter, and I guess what I am trying to explore 
with you is some workable alternative to what I see coming as a big 
problem out there. 

Mr. Wharton. I think that specifically does — excuse me. 

Chairman Abourezk. If the Supreme Court comes down and says 
the original boundaries are within the four counties, well, there are 
almost no Indian people living in those four counties and that means 
that the tribe out of Rosebud is governing an area that for them, is 
practically ungovernable. 

Mr. W t harton. I guess, Senator, that the response to that, is that 
I expect that the Rosebud Sioux Tribe will act responsibly. They 
probably don't want to govern four counties because they probably 
don't have the equipment or the administrative ability to do so. 

Chairman Abourezk. I'm not worried about the tribe. That's not 
my problem. I'm afraid there is going to be a war, not started by the 
tribe, but what I am leading up to is to follow Mr. Alexander's point, 
that if the tribe by a Supreme Court determination is determined to 
have jurisdiction of the four counties, when they come to sit down 
with the State of South Dakota or those three counties over which 
they probably do not want to have jurisdiction, they've got some- 
thing to bargain with. 

They can sit down then, and say, neither one of us really want 
Indian jurisdiction over those three counties, but what we do want as 
the Rosebud Sioux Tribe, and I am obviously conjecturing at this 
point and not speaking for them at all, is some sort of solid land 
base and jurisdictional base from which we can function. 

Chairman Abourezk. They have that, you know. 

Mr. Wharton. They do have that. 

Chairman Abourezk. The tribe really does exercise pretty much 
complete control over the reservation area within Todd County. 

Mr. Wharton. I guess the thing is that they work on some sort 
of agreement with the involvement of the Federal Government to 



75 



redraw some treaty boundaries and to redraw reservation boundaries 
consistent with the needs of all the people involved. 

Chairman Abourezk. That sounds all well and good, but I don't 
have to tell you what the passions are in a place like that and in the 
northwest and so on. 

See, what I'm afraid of is, I'm not worried about the tribe itself, 
because I've talked to the tribal people out there and they are more or 
less willing to work something out, because they know, they realize 
that so far as they are concerned it's ungovernable. They en n't 
afford to cover four counties. They don't really know what to do with 
them. 

But, what I'm afraid of is, that the reaction of the non-Indians 
might get the tribe's back up, and you are going to have a confronta- 
tion where one might be able to avoid it. I don't know how to do it, 
and that's just what I'm kind of asking. 

I mean, your theory is fine, but I need something more practical 
to talk about I guess. 

Congressman Meeds. Mr. Chairman, may I suggest at least a 
framework in which we can begin to work to offer a solution to that 
problem? That is the suggestion for legislation, which will so define a 
reservation so as to prevent the very thing about which you are 
talking. 

Now, I know this is no easy matter. But, it seems to me, that it is 
clear that this country is not going to stand for the Sioux administer- 
ing and governing the boundaries of the original Sioux treaty of 1862- 
1851, maybe. We have to define or recommend to the Congress that 
reservations be so defined as to prevent the very kind of conflict 
about which you and I both know. I think most reasonable people 
in this Nation would not like a definition or a court interpretation 
of reservation, which leaves Indians and Indian tribes in a position 
where they are governing large amounts of geography or large amounts 
of land in which they are not predominantly inhabited by Indians. 

Under some of the interpretations that might be given, we would 
have in our area Indians administering the City of Tacoma. Now, 
we've got to be realistic. This simply is not going to happen, and it 
seems to me that we have an obligation here to so define or at least 
lay forth the guidelines for definitions of reservations, which would 
prevent that kind of obvious conflict. 

Chairman Abourezk. Well, I guess what I'm looking for, and it 
seems like Lloyd is looking for the same thing, and perhaps you might 
want to discuss and provide some sort of guidelines in your discussion 
of what several alternatives might be undertaken in instances like this, 
where in effect, new facts have been created through the fault of 
nobody living today. 

And, it might help as some sort of approach to it or a policy that 
might be adopted. 

Mr. Wharton. I feel the need to respond briefly to that because I 
think it is an extremely important point, and I think if I understand 
the position that you are outlining, Congressman Meeds, what we are 
talking about effectively is the abrogation of Indian jurisdiction over a 
large geographic area, predominantly inhabited by non-Indian people. 

And while I understand the practical and the emotional justification 
for that, I feel like it is not legally and morally appropriate to take that 
kind of position from the congressional point of view. 



76 



Chairman Abourezk. Take what kind of a position? 

Mr. Wharton. That jurisdiction be abrogated by Congress. I do 
think there is a middle ground, and that middle ground is to set up 
processes by which those sovereigns can sit down and negotiate some- 
thing that is mutually acceptable to both of them. 

Mr. Alexander. To take the Tacoma situation, it seems that if we 
go back to D'Arcy McNickle's historical piece that everything the non- 
Indian community — (and take Senator Abourezk's point — that it is 
not the Indian community that he is particularly worried about in that 
particular situation) — is angry at the Indian community or wishes 
something that the Indian community possess by a right, it is the 
Indian community that ends up losing; that the solution is to only 
focus on taking away something the Indian community may in fact, 
win in court cases, based on the existing legal documents. And, what 
we end up with is one side raising a stink and the other side receiving 
nothing functionally. 

What we have suggested in task force 4 is a process that perhaps 
what is appropriate, is for the City of Tacoma and the tribe to sit 
down and determine perhaps if there is not a unified alternative land 
base that that tribe could have that would provide for its economic 
future and the hopes and aspirations of its people, and then to come 
back to Congress with that. 

But, if each case is so different, each factual situation, then a solution 
across the board to remove jurisdiction by an act of Congress from 
Indian tribes where such exists in the law, can't ignore the distinctions 
and variations between the tribes. 

What we recommend is a negotiation process with Federal support, 
with requisition of hind bases, with tradeoffs, if that is what the tribe 
is willing to do, and if that is what the individual non-Indian commu- 
nity is willing to do. There is a substantial showing as the hearings 
record across this country from non-Indians, beyond the emotional- 
ism, of being willing to leave those reservation areas and sell out. 

The Standing Rock Sioux have offers to buy back 50,000 acres 
within their reservation area. Even in the northwest, from some of 
the most vocal opponents to future problems that they perceive, may 
come with tribal governments. This statement is that the Federal 
Government is to blame; that the Federal Government is the entity 
that misled the tribes and misled the non-Indians coming into reserva- 
tion areas, and if there was an equitable way for them to be bought 
out, to have exchanges of land, that some of those non-Indian persons 
would be willing to adopt that kind of reasonable position. 

Chairman Abourezk. I think that works in a place where there is 
a majority of Indian population, but I don't know that it would 
work sc well, Paul, in a place where there is a very extreme minority 
of Indian population; and there are hundreds of thousands of acres 
of very expensive land that you have to find money to buy. 

Mr. Taylor. Mr. Chairman, we intend to address this in the juris- 
diction section and we have a paragraph that I think is pretty 
important. 

The operating assumption of the Federal Government, I think, 
through our history, has been the non-Indian community, the non- 
Indian States and counties, will act responsibly and fairly toward 
Indian people as well as all others. We have a 200-year history now 



77 



that shows that this is not the case. It's time to turn the table over 
and operate off of an assumption, until it is proven otherwise, that the 
Indians are going to act responsibly and fairly and let's see what 
happens in Tacoma, Wash. I understand that th^re is some saber 
rattling out there and that the Indians say they are going to im- 
pose a tax on the city of Tacoma. It's ridiculous and that's what 
the plenary power is about. 

If they tried it, the lifetime survival for that tribe is about 24 hours. 
They are terminated just like that. These people are not going to 
commit hara-kiri. The}' are not going to run out and propose laws 
that the}" know are going to so inflame the non-Indian community 
that they are going to wind up terminated. 

I find it also, and I really feel compelled to address this, this idea 
that a tendency toward criminal misbehavior of non-Indians is a 
cause to reduce the Indian reservation; this idea is abhorrent. That's 
the history of this country. That's what Worcester v. Georgia was all 
about and everybody in the establishment knew that the frontiersmen 
in Kentucky were stirring that thing up. 

We removed those tribes to the West because we couldn't spend 
enough money to raise an army to defend the treaties that we had 
entered into with those people. That's how the Black Hills were lost. 
Gold was discovered there and we didn't have enough troops out there 
to protect the Black Hills, so we finally threw up our hands and said, 
"Well by God, we'll turn it around. We'll take the Black Hills away 
from the Sioux. We'll let the miners have it." 

I understand that's where William Randolph Hearst's first fortune 
came from, was out of that. Then we did it in Oklahoma 

Chairman Abourezk. The Federal Government got $1% million of 
that back yesterday. 

Mr. Taylor. And I'm so emotional about this issue and this argu- 
ment that I think I better stop while I'm ahead. 

Commissioner Bruce. You guys are beginning to make some sense 
now. You're turning around and saying, ' 'We're not the bad guys, 
that we are capable." 

That's the best thing you've said so far. Now if we're not going to 
make legislative recommendations, what do we say about the present 
interference as a result of congressional authority that allows these 
people, the FBI people, to come in on reservations and do all these 
things? 

Don't we need to draft some kind of legislation that prevents them 
from doing these things? You know, and we talk about Tacoma. 
W 7 hat's wrong with Indians running Tacoma? I'm all for it. I think 
we've got to change this around. All of our lives we've been incompe- 
tent to this very day. 

You know, I don't even sign — I use this as a favorite — I don't 
even sign my lease. I don't know what's in the lease for my allotment 
at Pine Ridge. I don't sign it. The tenant signs it. Are we going on 
forever with this kind of thing, saying to me even, maybe I'm not — 
you're not competent, you know, so we have to take care of this and 
we have got to change that thing around. We are competent and we're 
proving that we're competent to do these things. 

So, let's not get bogged down with blaming us for all the things that 
you know are bad. 



82-749— 77— vol. 



78 



Chairman Abourezk. Lou, I hope you didn't misunderstand. I 
didn't blame the Indians for everything that was bad. 

Commissioner Bruce. I don't want those guys to get on that. 

Chairman Abourezk. What I was looking for was a practical way 
out of what I foresee as a very immense political problem shaping 
up out there. 

Mr. Taylor. And I agree that we have to find it, but the concept 
that the answer lies in reducing the reservation boundaries is such an 
anathema — well, you saw the way I reacted. 

Chairman Abourezk. But I mean in defacto, those boundaries 
have been reduced over the last, I guess, 75 years, something like that. 

Mr. Taylor. There has been a great influx of non-Indian population. 

Chairman Abourezk. Under the color of law. Now, it might have 
been illegal, but it was under the color of law, those people have been 
misled by the Federal Government, there is no question about it. 

Mr. Taylor. And I think the important thing is that the Rosebud 
Sioux Tribe, as you indicated they are willing to do, needs to sit down 
with the non-Indian community. I don't believe that that tribe wants 
to exercise powers over all four counties. They can't do it. By the 
same token, the State can't exercise jurisdiction over the Rosebud 
Reservation. They tried it at one time, the State of South Dakota 
had that jurisdiction, and they ceded it back to the United States 
because they couldn't do it. 

The tribes and the local county government should sit down and 
work with each other. Congressman Meeds, at lunch yesterday, there 
was some discussion about sort of primary authority and secondary 
authority. Within Todd County, the tribe would want to have primary 
authority, whether the person i> Indian or non-Indian. 

Outside Todd County, perhaps the State ought to have primary 
authority. Primary implies a secondary authority, too. Now, I think 
the Rosebud Tribe would like to have jurisdiction over their own 
members for crimes they commit within that four-county area; for 
divorce, for custody of children, like the DeCoteau case, civil com- 
plaints, and contracts among their members. 

The conception is that the need is for the tribes and the States to 
sit down and start talking to each other. I think that is vitally 
important. 

Don WTiarton and I had a conversation with some of the Inter- 
national Game people. I don't know their full correct title, but that's 
essentially the thrust of what we talked about with them, that this 
fishing controversy out there in the Northwest is not an unresolvable 
thing. It doesn't have to be resolved through condemnation of the 
Indian fishing rights. 

It can be resolved by responsible State action and responsible tribal 
action. There are burdens on tribes here too, and we have to recognize 
that ; but we have to seek solutions that will accommodate these 
problems you are talking about. They are very real. 

Chairman Abourezk. Senator Hatfield and I went and held hear- 
ings in the Northwest recently. Senator Hatfield came up with what 
I thought was a fair, workable solution. 

It's kind of similar to the Hopi/Navajo Commission that was set up 
to provide for negotiations between the two various factions and there 



79 



-was some way to work out what the ultimate solution of that problem 
will be. 

Now we did the hearings too late in the year to introduce legislation, 
but I understand Senator Hatfield is drafting — at any rate, Tom is 
getting it ready and he will drop it in next year and I think he'll have 
cosponsorship for many of the people up in that Northwest territory. 
I don't know if Lloyd has been in all that yet. 

In other words, I asked every witness, Jndian and non-Indhin, 
what they thought | about that and the overwhelming majority of 
both sides thought it was a good idea. So, you're right, they're reached 
the point where they can do that, but I don't think that point has 
yet been reached in South Dakota, primarily because everybody is 
waiting for the Supreme Court decision to come down, and my only 
hope is that it's not too late after the decision comes down to be 
able to work out something like that. 

It should be done before everybody gets their backs up. Another 
question, and I'm going to raise this question about the FBI being 
in on the Indian reservations. 

Have you addressed anywhere in this section or any other sections, 
the notion that the FBI ought to be gotten the hell off the reservations 
and perhaps have some other investigation agency operating there 
instead of the FBI? 

Mr. Alexander. Yes; we have. 

Mr. Wharton. Yes, sir; we have. 

Commissioner Whitecrow. Mr. Chairman, before we get into that, 
may I comment on some of the items that we have been talking about 
here? 

Chairman Abourezk. Yes. 

Commissioner Whitecrow. Thank you, sir. I would like to ap- 
proach this particular aspect of reducing the jurisdiction boundaries, 
geographic boundaries of a tribe from this standpoint. Every place 
that I've been in these past 5 to 10 years, I hear comments from 
American people all over the Nation saying something should be done 
about the Indian problem. 

The Congress of the United States should do something about it. 
They look upon the Indian situation in the United States as a black 
mark upon our Nation, a black mark upon the honor of our Nation. 

I would like to call to our attention a comment that was written 
from Secretary of War Knox to the President of the United States 
on July 7, 1789, at which particular time they were discussing the 
situation of the Indians in the Southeast part of the United States. 

They wanted to do something about the Indian problem down in 
the Southeast corner of the United States. They wanted to relocate 
them and they are fortunate to be alive, even today. But, the Federal 
Government, at that particular time, through the Secretary of War 
proposed the following: 

Missionaries of excellent moral character should be appointed to 
reside in their nation; who should be well supplied with all of the 
implements of husbandry and the necessary stock for a farm. 

These men should be made the instruments to work on the Indians, 
presents should commonly pass through their hands or by their 
recommendations. They should, in no degree, be concerned with trade 
or the purchase of lands to rouse the jealousy of the Indians. 



80 



They should be made their friends and lathers. Such a plan, al- 
though it might not fully affect the civilization on the Indians, 
would most probably be attended with the statutory effect of attach- 
ing them to the interests of the United States. 

It is particularly important that something of this nature should be 
attempted with the southern nations of Indians whose current situa- 
tion might render them proper subjects for the experiment. The expense 
of such a conciliatory system may be considered as a sufficient reason 
for rejecting it, but when this shall be compared with the system of 
coercion, it should be found the highest economy to adopt it. 

After reading that and also picking up last evening's paper, I read 
something that is quite in correlation with this, a situation that is 
happening to many other of our Indian citizens in this hemisphere. 

I would like to call the Commission's attention to this. In the 
Washington Star of last evening, there was an article headlined, 
"Anthropologists Charge Firms Peril Brazil Indians." I would like to 
read this anthropologist and those academic types who spend their 
time prying into people's Mating habits and other private business, 
have joined a long list of groups taking pot shots at multinational 
corporations. 

And, a pair of anthropologists representing what they describe as the 
first public interest anthropology research group of the United States 
has issued a report saving that mining activities in the Amazon base of 
South America is destroying local, primitive Indian tribes. As described 
by the principal author, Dr. Sheldon Davis, of the Massachusetts 
Institute of Technology, the summarial is this: 

Mineral rights are discovered in remote jungle. Greedy, profit-lusting, multi- 
national corporations combine with repressive military regimes to exploit the 
deposits. Roads are forced into remote areas and construction boomtowns spring 
up as mines are opened. 

The local Indians are conveniently eliminated by outright killing or disease or 
are drawn into the modern economy, such as it is in the jungle. The loss of tradi- 
tional culture is a clear point of conflict between scientists and businessmen. 
Anthropologists develop theories of behavior by studying primitives. A developed 
Amazon wipes out any laboratory. 

Davis' description of the intrinsic behavior pattern of U.S. -based 
multinational corporations is based on what he terms their "geological 
imperative" to continue pumping minerals and energy into the indus- 
trialized world. The chief elements in this phenomenon are large multi- 
national minerals and energy corporations and the powerful govern- 
ments and international lending and development institutions on 
which they depend, at private economic gain. 

The remedy, both Davis and coauthor Robert Mathews talk hope- 
fully of congressional investigations on the impact of the multi- 
national's activities. Ideally, we would like them to leave, Mathews 
says. 

When I read that last evening, I began taking a look at what it is we 
are doing as a congressional commission, looking at the relationships 
of our Indian tribes in the past and what is happening today in this 
modern world and South America. 

Something quite similar to the same thing that has happened to 
American Indians, North American Indians, and citizens of the United 
States. 



81 



I think the fooling of the eountry is the fact that they want to ob- 
literate this black mark against our great Nation. I really feel truly 
that the Indian people and non-Indian people alike would like to 
correct these injustices. 

I think once it is pointed out that historically, the tribes still have 
the sovereignty, they still have the jurisdictional process, and the 
tribes are still governments that can govern, then I believe the Amer- 
ican people will begin to accept this. However, I fully realize that 
tempers do run high. I, too, have been the victim of some of the preju- 
dice that has been shown around the Nation, even back in the days 
when I personally was refused the opportunity of purchasing a bottle 
of beer in New Mexico, and this was quite a few } r ears ago that this 
happen' a 1 . But, I can tell you from a standpoint of experiencing a 
situation such as this, it really brings down home what it is that we 
are all about. 

At that particular time, when that happened to me, I was a soldier 
in the U.S. Arnvv, fighting for this Nation and within the Nation 
itself, I was refused the right of purchasing one bottle of beer in one 
of our States. Now, that to me is deplorable and it made me begin 
to wonder why is it, if I cannot be treated like other citizens in these 
United States, why should I fight for it. 

Now I think this is a very serious thing that we're talking about, 
and I think the non-Indian population in and around Indian country 
should be made aware of what has happened in the past and I fully 
believe this is a congressional responsibility to do so. 

I think the States and the tribal governments should, and could, 
through a mediation of the Congress, bring about a relationship 
•whereby jurisdictional processes could be worked out and also, sov- 
ereignty could be worked out so that we could have a once-and-for-all 
correlation between tribes and State government, because that's 
where it's at. That's where the feelings run high, right out there in 
Indian country, not here in the United States Capital, but out there 
in the field. That's where feelings run high and that's where we have 
bloodshed occasionally. 

That's when we have lots of black and blue marks and bruises, a 
lot of fights, a lot of stabbings, and a lot of discussion such as this take 
place out there. 

I think it's our responsibility to recognize this and to work out an 
agx-eeinent whereby the Federal Government could be the mediator 
and bring about the relationship between State and tribal government. 

Mr. Yv'ilkinson. This discussion is moving toward what I think the 
staff sees as the absolute central crest of this report. The ultimate 
problem in the last 10 years is one most of you are acutely aware of 
in your own constituencies. It is happening all across the country. It 
is the fact that local non-Indian citizenries are reaHv, to one degree 
or another, rebelling against Indians, and in many situations are not 
willing to work with them. 

We see the thrust of this report to be a statement of very basic prin- 
ciples, such as the fact that Indian tribes are governments. Congress- 
man Meeds, I suggest that the problem is not that the law is not clear, 
and I will stand behind this 100 percent. The law is clear. The problem 
is that the States in some cases, and I don't mean to say in all cases — - 



82 

there have been some wonderful agreements worked out at the local 
level — but in too many situations, the States arc not recognizing wh&i 
the law is. 

This has been a continuing pattern in the northwest litigation. 
Judge after judge has thrown up his hands and has criticized the 
States for refusing to cooperate with the tribe-. Now, what we are 
suggesting, for example, in paragraph 1 on page 10, is not to make 
new law, not to take any radical steps, but to set forth a clear con- 
gressional statement in this report and then in a statute, presumably, 
that Indian tribes are governments. 

I can't tell you the frustration I've felt at bargaining tables repre- 
senting tribes in many situations across this country. The people on 
the other side of the table either say or act as though my client is 
nothing more than the Elks Club. That's not the law. 

Indian tribes are more than the Elks Club, and the Supreme Court 
for 150 } T ears has stuck to that principle and has done so this calen- 
dar year in two cases. And I think it is time for Congress to state 
that Indian tribes are governments, and state it in very clear term-. 

What this will do i^ to allow tribes to negotiate at the local level. 
The Senator is concerned about the county level and that is a matter 
of deep concern, there is no question about that. If the counties wish 
to come to Congress for a solution to eliminate tribal jurisdiction, the 
staff suggests that those counties should come to Congress and say, 
"We have sat down with the tribe and negotiated and tried to work 
this out. We have sat there with that other government and we 
reached an impasse." There is no more basic point in this report. 

The problem is that they are not taking those steps. They are not 
sitting down with the tribes. This Commi>sion can do things to en- 
courage that kind of negotiation at the local level, and that is where 
the long-term solution is needed. 

The city of Tacoma may have a real problem, Congressman, I agree 
with you completely. But I don't believe Congress should intervene 
or take am^ action until those two governments have sat down and 
tried to work it out in good faith. That hasn't happened yet. 

If we reach that kind of impasse, then perhaps Congress should 
intervene. There are suggestions, and we'll see them as we go through 
the staff recommendations, of different techniques to attempt to give 
the tribe a congressional sanction as to existing law so that they can 
sit down as equals at the bargaining table. There will be a proposal, 
for example, for Federal funding of negotiations with local agencies, 
and perhaps with the use of Federal mediators in some situations. 

Mr. Borbridge. May I interrupt, Mr. Chairman, at this point, 
just to clarify my own thinking here? 

What we are saying, essentially, is that one of the attributes of 
tribalism is sovereignty and that over the years, in the relationship 
with the Federal Government, there have been erosions of this sov- 
ereignty. We are not always able to be precise as to what character- 
istics of this power have been eroded other than to say they reflect 
the tremendous diversity in the tribes. As a consequence, some have 
preserved a greater degree of the attributes of sovereignty than others 
have. 

Therefore, we are saying, that with respect to the broad spectrum 
of residual tribal sovereignty, that is, the sovereignty that is left, 



83 



there has not been in most instances, a precise or, if you will, official 
or congressional determination of what specific sovereignty still resides 
in these various tribes. 

I sense that what we are saying then, is that there should be an 
Indian involvement in two phases as I see it. If I read the findings 
and recommendations correctly, point one, there needs to be a 
determination specifically, almost on a tribe-by-tribe basis as to 
what elements of sovereignty are still retained. We are saying further — 
and here we come to the heart, I think, of the potential effectiveness 
of the Commission, that point two, as a result of these findings, we 
will no doubt determine through whatever means are used that 
there are instances in which practically unworkable situations are 
noted. But, we are not suggesting that the Commission go on record 
as advocating unworkable or unattainable solutions. 

What we are saying is that when we do move into the second area 
of Indian involvement, the determination of tribal sovereignty, that 
it should not be done unilaterally. The Indians should be involved in 
that determination. That process has become something of a gray 
area in our history. 

The second one, once recognizing what tribal sovereignty there is, 
then there is this sense of negotiation that takes place. This negotia- 
tion would proceed on a much fairer basis if there is a feeling that 
when the Indians sit down with whatever other sovereignty, I mean 
government, be it county or whatever, that if there is Congressional 
intent that the issues should be resolved at that level; then it would 
so proceed. 

The thing I want to make quite clear is that I think it's quite 
important for the record to state that the Indians are not seeking the 
unattainable. They are not seeking what can no longer be done. We 
are not talking about restoration of those areas which for all practical 
purposes can never be achieved again because, if we take that stance, 
then we're also going to sacrifice in the process some of our effective- 
ness and some of the workable solutions that we can achieve. 

What we're suggesting is that at least we would urge that there be 
a sense of negotiation. This would be a reverse of the trend which has 
been a historical one in w T hich the Indians have been a passive re- 
cipient of whatever has been determined unilaterally by the Federal 
Government. 

I'm giving my understanding of this 

Mr. Wilkinson. I notice the Commissioner no longer dares to 
begin his statements with disclaimers of being just a layman. Yes, 
you did clarify what I was attempting to say, yes. 

Congressman Meeds. I would just say, Charlie, you started out 
by saying that there is no dispute, or the law is clear, or something 
to that effect. 

You know, I just can't agree with that. You ask about the FBI 
agency on the Rosebud Sioux Reservation, while the Federal Govern- 
ment has reserved jurisdiction for the 10 major crimes on reservations, 
and the FBI is the instrumentality, whether you agree or disagree. 
And, I am not any great friend of the FBI, whether you agree or 
disagree. 

That jurisdiction has been reserved. The Indians have not tried to 
assert, nor do I think anybody is really seriously asserting that the 



84 



Indians have a right to govern the city of Tacoma — the situation is 
that you have some court decisions over here which have interpreted 
treaties, and which have given legal rights to Indians which they have 
never asserted, and that's the law you're talking about. 

And, had they tried to assert it 20 years ago, we'd have the conflict 
that we're going to have in 2 and 3 and 4 years from now, a conflict 
between cultures and a conflict between tribes and non-Indians. 

If this Commission goes on record as enlarging the jurisdiction as it 
actually exists today, we're going to have trouble and Indian tribes 
and Indian people are going to have trouble and they are going to end 
up in a much worse position than they are today, as I see it. 

And, I think this Commission has to come forward with some 
responsible suggestions and definitions of reservations which do not 
lead them into that trouble. 

Mr. Wilkinson. Well, and I know we understand each other in this, 
I'm not saying that the law is clear in all situations. I am saying that 
there is a tragic lack of recognition of the law by many non-Indian 
interests across the country, and I mean the word tragic. There are 
gray areas, but the law is not as unclear as many would have it. 
And I think it would be very good if Congress were to state some of 
these basic principles. In the area of expanding jurisdiction, Congress- 
man, we will see as we go along that there are precious few areas in 
which there is any attempt to expand jurisdiction in the staff recom- 
mendations; very, very few. 

The approach is mainly to clarify the present situations. 

Congressman Meeds. Well 

Mr. Whitecrow. Will the gentleman yield? 

Congressman Meeds. Go right ahead. 

Mr. Whitecrow. Thank you, sir. 

I would like to point out this: Charlie, I notice your comment that 
the law is clear and then I begin to wonder whether or not it is clear or 
not. In this material that I received from the Commission, which was 
Mr. Meed's — I believe you chaired this meeting with the tax admin- 
istrators of the Western States. 

A lad}- by the name of Mary Ellen Macaffree, State of Washington — 
I believe this really clarifies the situation that the law is not clear. In 
their testimony that was submitted to the Commission on the second 
page, I would like to point this out to our Commissioners. 

First of all, before I read this short paragraph, I would like to 
point this aspect of it out. As I begin reading this testimony, I began 
realizing that these tax administrators are certainly competent 
people. They were knowledgeable, the}* were much more knowledge- 
able than I really anticipated they would be, in regard to Indian 
law, because when I talk to tax administrators and tax people in the 
State of Oklahoma, they are completely at a loss. 

As I said yesterday, Oklahoma certainly is a confused State. 
But, their comments here, in their testimony, they state here that as 
administrators of State law where there are no Federal prohibitions 
to State powers, we have a responsibility to try to assert State juris- 
diction. 

And that word try, a three-letter word try, I believe, is the 
catcher in this particular testimony, because they're not sure whether 
or not they have jurisdictional powers here. 



85 



I also find the same thins; to be true in the State of Oklahoma, 
when it comes to legal jurisdiction. For many years, I have been 
trying to bring about a parimutuel horserace operation on tribal 
owned trust land which is contrary to State law. The only way we 
felt that we could get that into court was to have an Indian and a 
non-Indian shoot craps out there on the reservation, and I couldn't 
even get the local sheriff to get involved in that because he was 
fearful of being run off and not being available or reelected in the 
coming election. He just didn't want to have anything to do with 
it at all. 

So, that's why I say Oklahoma certainly is a confused State and 
I was informed that if I proceeded, that the Federal Government 
would process and prosecute me if I brought this about. 

So, I put it on the shelf. Hopefully, after this is all over, we still 
might have a parimutuel horseracetraek in Oklahoma. 

Mr. Alexander. Commissioner Whitecrow, that example you 
read is a classic example of a State not recognizing what its relation- 
ship to an Indian tribe is. 

States may be given, by the Federal Government through Congress, 
affirmative grants of jurisdiction to do something. That's the nature 
of Public Law 280 and all the Supreme Court decisions around it. 
In the absence of an affirmative grant, the State has no power with 
respect to an Indian reservation; so what a tax administrator should 
be looking for is an affirmative grant, not to see if there is a pro- 
hibition against anything he or she can do. 

Mr. Wilkinson. I think it is particularly appropriate to point 
it out here, because this is a paper that is very helpful to the Com- 
mission. I think it's a very fine paper and one that the Commission 
should consider and look at. And, it lays out 

Chairman Abourezk. Which paper is that, Charlie? 

Mr. Wilkinson. I believe it is submitted by the western tax 
administrators. It sets out the States' position in, I think, a very 
responsible way, and it's something that should be considered. But, 
nonetheless, as Commissioner Whitecrow pointed out and as my 
colleague points out, they are incorrect on the most fundamental 
point of all. They misread precisely the point that we are asking the 
Commission to clarify so that this kind of misinformation will hope- 
fully not occur in the future. I mean point No. 1 that is on page 10. 

Chairman Abourezk. All right. 

Now, we've reached a point here, I think, and I'm going to try to 
do this as freely or as openly as I possibly can, but what my objective 
is going to be is to allow as much and as full a discussion as we can 
within our time, constraints on every issue that is of interest to the 
Commissioners, and in an effort not to cut anybody off, we'll just let 
it go like it shouldn't be allowed to do. 

But, at this point now, we are coming to where I think we are all 
repeating our.-elves on this one issue and I think it has been fully 
discussed — and if I'm wrong, please correct me. What I think we 
ought to do now is move on and tr}' to cover some of the other issues 
and get on beyond this chapter. 

Mr. Borbridge. Mr. Chairman, as a brief point I would like to 
inquire — as I understand it, we've been discussing what might be 
done to try to rectify through some mechanism, the erosion of tribal 



86 

sovereignty and its reestablishment in some way, but I think of more 
immediate import, what I came to recognize there is the fact that the 
Congress has, not as a matter of policy in many instances, stated its 
respect for, if you will, and recognition of specific tribal sovereignty 
and the policy lack in recognizing such sovereignty, is today resulting 
in f urther erosion of tribal rights — is this accurate? 

In other words, what I'm pointing to is that all of these problems 
that are causing losses to the Indian tribes are not going to be solved 
or even result in some negotiation unless we move on this issue now 
and unless the Congress does, as a matter of fact, establish such a 
policy. 

These losses of undetermined and very extensive damage are 
continuing and the fact is, that this is not going to go away simply as 
though it were something that occured in the past. This erosion is 
occurring today and there is the pressing need for such a policy; is 
that correct? 

Mr. Wilkinson. Well, there have been few erosions of tribal 
sovereignty by Congress since 

Mr. Borbridge. Are there any occurring nowadays if we don't 
establish a policy? I want to challenge you to respond specifically. 

Mr. Wilkinson. I want to say, as a general principle, that the 
greatness of congressional policy during this decade has been that, 
although there have been erosions, on the whole, the thrust of con- 
gressional legislation has clearly been to support tribal authority and 
tribal government. My colleague may have a modification of this, 
but in my judgment the last major limitation on tribal sovereignty 
was in 1968 with the passage of the Indian Civil Rights Act. 

So again, what we would be suggesting is not an extension of 
sovereignty, but a clarification of tribal sovereignty in a couple of 
unclear areas in order to prevent the future erosion that you are 
speaking of. 

Mr. Borbridge. I read you. Thank you. 

Ms. Deer. Mr. Chairman, we are talking about tribal sovereignty 
and tribal jurisdiction, and my tribe, the Menominee tribe, has been 
mentioned several times. 

I would like to read the article on jurisdiction that is contained in 
our constitution, that the tribes just voted on. 

The governmental powers of the Menominee Tribe of Wisconsin, 
a federally recognized sovereign Indian tribe shall, consistent with 
applicable dual law, extend to all persons and subjects, to all lands 
and other property, including natural resources and all waters and 
airspace within the exterior boundaries of the Menominee Indian 
Reservation, including any land which may hereafter be added to the 
reservation under any law of the United States; the governmental 
powers of the Menominee Tribe shall consist of what applicable 
Federal law also extends outside the exterior boundaries of the res- 
ervation to any persons, subjects or real property, which are or may 
hereafter be included within the jurisdiction of the tribe under any 
law of the United States or of the tribe. 

This expresses the direction that our tribe wishes to go as we 
proceed with the restoration process that there are islands of private 
land in the reservation, both Indian and non-Indian, and we are in 
the process of setting up our court system and setting up a whole 



87 



new government under this constitution. And, onee it's approved, 
and 1 would like to state that 1 think some of the non-Indians there 
may be more — may be willing to submit to the authority of the 
tribal eourts than I think we are assuming that everyone will not 
wish to participate or to be subject to the tribal courts and that 1 
think that this is understood. 

We may see some different results. T would like to also state that 
the FBI has been on our reservation, and I know that this is a very 
emotional issue, but I feel I just have to state this. 

1 don't think they learned a thing from their experiences out in 
Pine Ridge. There has been a lot of mismanagement. They've missed 
catching people, and it was my feeling that if we had the power and 
authority, we could have gone — by "we," I mean the tribe. We 
could have handled the situation and I think the application here is 
that we need to think about the Assimilated Crimes Act and Major 
Crimes Act. 

My point in stating this, is that T think there needs to be considera- 
tion for a flexible mechanism that tribes can utilize; that the tribes 
defer, and that as it is now, there is very little choice and that I think 
in setting a new policy, this should be the flexible mechanism that 
tribes can sit down with the states and with the Federal Government 
and work out some of these things to avoid some of the confrontation 
and some of the other problems that we have all experienced. 

And, in our area we are setting aside trouble moneys to acquire some 
of this land and we hope that over a period of time some of the land 
that has been lost will be brought back under tribal title. 

Congressman Meeds. Mr. Chairman, I will abide the Chairman's 
admonition that perhaps we're going over this ground too many times. 
However, I feel really seriously that this is the core question that this 
whole Commission faces: the question of sovereignty and powers and 
which ones can and should be exercised by Indian tribes. 

And, just very quickly, I will iterate my understanding of that 
second sentence of the first paragraph and ask if my understanding is 
correct. 

With the understanding that sovereignt}^ is the power to govern 
all those diverse elements which are required of governments, that 
sentence means to me that the question of who shall be governed, 
what shall be governed, where they shall be governed, how they shall 
be governed, is all encompassing. 

It is saying that Indian tribes have the inherent right to govern 
everyone within their jurisdiction for all purposes. If I understand 
what is coming down the road, that definition of where will probably 
be, perhaps, former boundaries of reservations or at least that is a 
question for negotiation with local governments. 

Also that sentence means that the power will be for all things. And 
I just want, for the record, to indicate to you that I think that if we 
were to adopt that policy, it would be totally unrealistic in keeping 
with the facts and that it will be totally destructive, totally destruc- 
tive of both Indian tribes and Indian people in this Nation. 

Mr. Wilkixsox. Mr. Congressman, I just want to emphasize that 
I think what you say is a literal reading of this sentence. As Mr. 
Taylor indicated before, we fully recognize that that total sovereignty 
is subject to the plenary power of Congress. 



8S 



In m}^ judgment and in the judgment of my colleagues, that should 
have been clarified in No. 1 in exactly the manner you indicate, and 
will be. In other words, we are not suggesting by this statement that 
all of the sticks are still in the bundle. 

We recognize that Congress can take those sticks out of the bundle, 
that some have been taken out of the bundle and we fully respect that 
the plenary power of Congress will be more specifically mentioned in 
this paragraph. 

Commissioner Bruce. May I ask a question? Repeat that again, 
will you Charlie? Are we backing away from something here? 

Air. Wilkinson. No, not at all. It happens that the sentence the 
Congressman is looking at does not have a specific reference to 
Congress plenary power. It should, and there are many, many refer- 
ences to plenary power throughout the report. 

We believe that this is a fair statement of the law. But the Congn s — 
man is reading it literally and we have no objection to that, and we 
will make it clear that Congress does have plenary power and that 
tribes are not total sovereigns in the sense 

Commissioner Bruce. Let's not overemphasize. I don't agree with 
that wholeheartedly, but I think we ought not try to bend over so 
far that we're always opening the door for something to happen to us 
to wipe us out and that sort of thing and that's why I want to bring 
this question up. I also want to go back to the statement that Con- 
gressman Meeds made that was — "we're going to have a lot of trouble 
down the road." 

Well, we're having that trouble now. We're in that trouble now but 
we need to face that issue and try to improve it one way or the other, 
or we're really going to have a blowup and we've been in trouble. 

But, if we don't make some of these changes, we will be in worse 
trouble. It makes a lot of difference whether you're chairman of the 
House Interior Committee or just a citizen like me now, as to how 
we're facing this. And, I don't like to get so emotionally upset, but 
I lived with this thing more than these guys have all my life and I 
want, on this Commission, to see us make these changes and to talk 
about them fairly; to get Indians in a position where they can negotiate 
with the neighboring communities. 

I have seen very little of that kind of thing in my lifetime. I think 
also, I mentioned the FBI and all these others going on the reserva- 
tion. I want to add Federal agencies, I want to add the Corp of 
Engineers, and there are some guys in here who fought with us on 
that dam in New York State and sort of kissed that goodbye and it 
happened in a hurry by the Corp of Engineers here, and I want to 
list them for the record as being the one and I not only have fought 
against them and not unrealistic ally to change some of these things 
and it's hopeless. I did it on my own farm and low and behold, they 
just came in and took it over and said, 'The hell with you." 

But, you know, we've got to face some of these issues. I just jotted 
down some things. Are we maybe going to change the interferences 
that we have somewhere in there and that's what I keep harping 
back. I don't mean just the FBI itself. We need to get back to really 
-giving these tribal councils the authority and right to move ahead 
and that's why we are talking about sovereignty. 



89 



Commissioner Whitecrow. Mr. Chairman, I would like to add to 
what Commissioner Bruce has said here. 

Some of the things that have been ha pnenin<2:, I too have lived with 
the situation all of my life with the State of Oklahoma and the Federal 
agencies breathing down my throat all my life; and one of the things 
that was really enlightening to me, was the fact that when I finally 
discovered that if I should inherit any tribal or trust land, I would 
immediately become, as the Bureau calls it, award of the Government. 

I currently don't own any land that is being held in trust, nor do I 
have any money in the individual money accounts of the BIA. 
Therefore, I'm a free agent. I'm a full-fledged citizen of these United 
States. 

But, if I should inherit anything of this nature, I would immediately 
become a ward of the Government and in order for me to have control 
over my own property, I would have to go through the State court and 
prove my competency. 

So, therefore, I feel under the shadow of this thing all of my life 
also, and I think one of the things — the argument that's been pre- 
sented here, that we can have bloodshed in the event we return juris- 
diction back to the tribes; one of the things that I think we need to 
consider is the fact that these tribes are not militant people. 

They have leadership out there that are genuinely concerned about 
their people and they have feelings to treat their fellow man like fellow 
men. They have the feeling of following the Ten Commandments of 
Jesus Christ. The}' know what Mother Nature is all about. They are 
fine people. They are good people and the only reason that they have 
received this relationship insofar as any kind of militancy is con- 
cerned, is the fact that they have been driven to it and they are not 
really militant from that point of view. 

All they want is what is right, what is legally right and what is 
theirs, and there is a need to face this issue as a Commission and we 
cannot stick our heads in the sand and act like an ostrich out here. 

We do have the problems and, Mr. Meeds, I am in complete con- 
currence with you. I don't want to see any bloodshed either and I 
think we can truly bring about a relationship with this Commission 
that will sure enough set it down, whereby governments can sit down 
and negotiate these relationships and I think it is very essential to the 
future of our country. 

Congressman Meeds. If the gentleman will yield, since I don't 
think I have anyplace forecast bloodshed, I simply would indicate 
to you that I think that if we were to recommend this kind of broad 
definition of sovereignty which is inherent in this second sentence of 
paragraph 1, we will find congressional action which will much 
more severely limit tribal sovereignty than anyone in this room is 
prepared to accept. 

I don't say it will be by bloodshed. I think it will come very cleanly 
and very quickly. We will, by our deliberations, have brought that 
about. That's what I'm saying. 

Mr. Wilkinson. When you say the second sentence, do you mean 
third sentence? 

The second sentence is that the powers of tribes flow from their own 
inherent sovereignty. 



90 



Congressman Meeds. No, no. I mean the third sentence, It says 
"and questions relating to the powers of tribes, the rule should be the 
tribes have all the powers of any local sovereignty." 

Mr. Wilkinson. Again, our clear position is, that it should be read 
in conjunction with the next sentence w T hich does indicate that powers 
can be taken from the tribe and there is no question about that. I want 
to make that clear. 

Chairman Abourezk. OK. 

I think that pretty well exhausts this subject. So, we ought to go on 
to No. 2. 

Is there any comment on No. 2? 

Congressman Meeds. Yes, Mr. Chairman. I have a question. 
Chairman Abourezk. Congressman Meeds. 

Congressman Meeds. In quoting from that it says, "Indian people 
to form their own tribal governments in whatever form they choose." 

Now, let's assume that they choose to have a form of tribal govern- 
ment in which the leaders are picked by inheritance and that there is 
no right to vote by the members of the tribe for that leader. Would 
that situation be proper under that terminology? 

Mr. Wilkinson. That's fully permissible. The 1968 Civil Rights 
Act does not impose a republican form of government on the tnoes. 
That was debated by Congress when that act was passed and yes, 
that would be permissible. 1 think that the thrust of the 1968 act was 
to specifically permit that, in large part because of some of the requests 
from the Sou t Invest particularly. 

Chairman Abourezk. Let me ask a further question to follow that 
question, Lloyd. 

How will the tribe decide that that's the way they are going to have 1 
their government ; will that be done by election or you know, what ; will 
there be any basic protections for, say, a majority of the tribe that 
doesn't want it that way, but say somebody came along and imposed 
it on them one way or the other. How are you going to do that? 

Mr. Taylor. Mr. Chairman, I don't think there is any provision in 
here that would safeguard a situation like that. 

This is a restatement of acknowledged law. It's a restatement of the 
premise that w r as recognized in the Indian Reorganization Act of 1934. 
I brought with me a copy of a solicitor's opinion that was written by 
Nathan Margold within about 4 months after passage of the 1934 act. 
It is 60 pages long and I'm having 15 copies run because I would like 
each of the Commissioners to read this. 

The title of it is * 'Powers of Indian Tribes." It is a very, very 
exhaustive analysis of the powers of Indian tribes. 

Chairman Abourezk. You haven't answered my question that how 
are you going to get to the point where the tribe will say we're going 
to choose our leaders by inheritance? 

Mr. Taylor. It is not up to Federal law to tell tribes how they are 
going to organize. The Pueblos are organized along the lines that I 
believe you describe. I believe some of the New York Nations have 
inherited chiefdoms. Now, I'm not sure of that. I'm no expert on the 
organization of Indian governments. 

Many tribes have gone over to a constitutional system; most of 
the tribes of South Dakota, if not all. I don't see how they would ever 
get away from it and I don't really think they would, want to get 



91 



away from it. They have adjusted to the democratic, efectorinl 
type of concepts. 

Is it the function of the law to tell tribe6 bow they are going to 
organize? 

Congressman Meeds. Members of tribes, in addition to being 
members of that tribe, are also American citizens, and have certain 
constitutional guarantees. 

Chairman Abourezk. What protection of individual rights will 
there be in that kind of government, if you don't have an elective 
system? Is there a way to protect the rights? 

Mr. Taylor. Not through Federal law other than the 196S Civil 
Rights Act. I know the 1968 Civil Rights Act i> not liked by tribes 
but 1 think it's their saving grace. 1 constantly find myself falling bark 
on that as a justification and I think every lawyer dealing in this busi- 
ness finds himself in that same position. But, anything beyond that is 
not really the business of the Federal Government and Congressman 
Meeds, to go to your point there, Indians are citizens of the United 
States. That is very true. 

They are also citizens of their tribes and it goes back to the comment 
yesterday about international law. There is case law on the books, 
Standing Bear v. Crook, argued in around I860, I think. It established 
two facts. After 4 hours of arguing by the U.S. attorney to the con- 
trary, the judge finally rules that Indians are human beings within the 
meaning of the law. Incredible. 

The second part was that they also had the right as citizens of 
their tribes to expatriate themselves. That is an international law 
concept. That's what has been lost in recent years. We've lost the 
original conception of where this body of law originated and I sin- 
cerely believe that if we go back to these fundamental points, solu- 
tions are there. 

We are complicating it by the way we are trying to approach it, 
and if we would go back to these fundamentals, the thing will work 
much more expeditiously than it is working now. 

Mr. Alexander. To pick up on your point of how things will work, 
we almost seem to be dealing in a red herring situation. 

I know we have had the example of Pine Ridge, which is on many 
people's minds, but we should not generalize from one example 
where a process fell down and then was picked up by the tribal people 
and solved. 

Tribes are experimenting all over the country within their own 
tradition as to how to resolve conflicts between individual Indian 
tribal citizens and tribal governments. The Apache's talk about special 
committees of elders to negotiate problems out. It is not necessary 
that all systems and all remedies fall within classic Anglo triparte 
government systems. 

Government is based on people's consensus as such. Tribal govern- 
ments, whatever form that consensus takes, whether it be an election, 
be it the fact that if a chief was not acting appropriately, in years 
gone by, the elders of the tribes in many of the cases, the elder women 
of the tribe, told him and he stopped or he learned that he was no 
longer the chief. 

There is a multiplicity of systems. No one is suggesting that we 
can return to a 14th century system. The tribes are governments 



92 



within the 20th century context. Nobody knows how tribal govern- 
ments would have developed had not this continent been colonized, 
but tribes have come to have the flexibility to be able to make govern- 
ment systems reflect their people's needs within the context of theif 
cultures and their traditions. 

And, those answers are going to come up through individual tribal 
cultures. The 1968 Civil Rights Act provides basic kinds of Western 
civilization concepts to the operations of tribal governments. The 
individual Indian citizen's rights under the 14th amendment in the 
Bill of Rights, run against State governments and run against the 
United States, not to the tribe. 

Their rights and relations to the tribe are based upon their tribal 
constitution and their consensus, it can go back 3,000 to 4,000 years 
as in the case of the Pueblos. Those are systems that are going to 
have to be worked out, and people all over the Indian country are 
taking hard looks at those constitutions. 

There are several hundred Indian lawyers that exist today. There 
are tribal court judges that I would hold up against any legally trained 
judge in the United States that are operating today. There is an 
evolving, growing tribal government community, and we have to see 
and give it the support to see how it's going to be developed. 

We can't make specific generalizations on that evolving system. 

Mr. Wharton. I think there is one other important point here 
that has to be separated out. There are two questions involved here. 

The threshold question is whether or not Indian people can choose 
their own form of governments and our answer on that, to that, of 
course, is they can. 

The second question is how do you project individual members' 
rights, and the answer to that is, that the 1968 Civil Rights Act does 
that, whatever form of government they choose to govern under. 

You cannot guarantee individual rights by imposing a form of 
government. That's not appropriate. You cannot protect the indi- 
vidual rights under whatever form of government they choose to 
govern by through the 1968 Civil Rights Act, so I think that there is 
a two step analysis here and that it is not necessarily one kind of 
thing that goes on and I think that is an important difference in 
analyzing this thing. 

Congressman Meeds. Mr. Chairman, would the 1968 Civil Rights 
Act cover the situation of a form of government in which a specific 
religion was dictated? 

In other words, a state religion. Let's take the Pueblos. Does the 
1968 Civil Rights Act impose upon the Pueblos the obligation to 
allow freedom of religious exercise by their members? 

Mr. Wilkinson. The Civil Rights Act applies the freedom of 
religion protection but does not apply the bar against the establish- 
ment of religion. So the Pueblos would be permitted to have a tribally 
established religion. This was the rea-on this distinction was made in 
the act. But, they are bound under the Civil Rights Act to accord 
free exercise of religion. 

Congressman Meeds. So that only tho^e 10 amendments which 
differ in some respect from the 10 amendment- of the U.S. Constitu- 
tion are imposed upon tribes in their organization and not the other 
guarantees of the Constitution. 



93 



The 14th amendment 

Mr. Wilkinson. Due process and equal protection are included 
in the Indian Civil Rights Act. It's not an exact application of the 
first 10 amendments at all. Some are picked and chosen. 

For example, the right to counsel is treated differently. It is right 
to retain counsel. Due process is included and very importantly, 
equal protection is included. 

Congressman Meeds. Well, doesn't due process carry the right 
to have a vote and a say in the direction and the form of government ? 

Mr. Wilkinson. I think the legislative histor}- of the Civil Rights 
Act indicates pretty clearly that the republican form of government 
is not included. 

Now if the tribe does decide to vote, and then some due process 
issues may come in. But they would have the right to have a tribal 
government by means other than voting. 

Congressman Meeds. But, as Senator Abourezk points out, if there 
is no right to vote initially, as in a case where leadership is selected by 
inheritance and where this has always been the case, right down to the 
present, then a vote is rather meaningless on that question, is it not? 

Mr. Wilkinson. I just have to say what a wonderful form of govern- 
ment the Pueblos have, and how much Congress should encourage 
that. If the tribe had that hereditary form of government and still 
has it, I think present policy would encourage that tradition. And, I 
hope very much this report would encourage that. 

Congressman Meeds. But do you think, and this is the basic prob- 
lem I have, that this system under which we function can tolerate — 
and I use that word advisedly — can tolerate nonrepublican forms of 
government within our system. Or is this deleterious to the whole 
concept which we all hold so basic: The right to have a say in the 
management of one's affairs; a vote, whether you get your way or not 
is immaterial as long as you can voice your opinion. Well, it's not 
immaterial, but the premise is that once you had your say, you abide 
by the majority opinion. That is an overriding principle upon which 
this country has functioned for years. 

Now, I don't say we can impose this on the people outside of our 
borders and I have often fought against those who tried to do this. 
But it seems to me that we must impose this obligation and give that 
right to everyone within our borders or we are ultimately going to be 
destructive of our own system. You know, there is some question 
about the Civil War being fought over a question somewhat like that. 
That situation is not totally analogous, but it is similar. 

Mr. Wharton. Congressman, I guess the thing that most immedi- 
ately comes to mind are the remarks of Mr. McNickle, earlier on in 
this meeting and that has to do specifically with the relationship of 
the tribes to the government and the guarantees involved therein, in 
that that involves a process by which the tribes change because of 
their relationships and they choose to take on those accoutrements of 
the dominant government where they are appropriate and amenable 
to their form of government and do not take on those which are not 
consistent with their form of government. 

A vote is not the only way that people have a say in their form of 
government. 



82-749 — 77— vol. 4 7 



94 



Congressman Meeds. Are you suggesting that we should not aveh 
passed the Civil Rights Act then, because people would ultimately 
come around to the right position? Are you saying that we should not 
have imposed the obligation on storeowners and bus coin panic- and 
others; that the law of this land was such that it required equality 
and that we simply sat back and waited for it to occur? 

Mr. Wharton. Not with respect to the non-Indian governments, 
because we in the formation of our governments, chose to have a 
republican form of government. That is not the form of government 
which Indian tribes chose to have or have had historically. Their 
governments, particularly with respect to Pueblos, have functioned 
for thousands of years and it seems to me appropriate to their society 
and to their way of life. 

One of the basic tenets of our government is a separation of church 
and state. The Indian tribes, by and large, do not choose to separate 
the spirit from the body and they have found that appropriate to their 
existence and their government and it has worked well for them. 

Mr. Alexander. In the various pieces of civil rights legislation 
which you have just referred to, the period from the late 1950's 
through the 1978 act, Congress required a very significant and a 
substantial showing as to the pattern of civil rights violations; Con- 
gress went from the general 1958 act, which essentially dealt in a very 
general way with the voting and the U.S. Commission on Civil Rights 
into more specific remedial pieces of legislation down the road, requiring 
specific showings of patterns and practices of abuses by private 
companies, b} r State and local governments, significant evidence was 
presented in these areas. Yards of litigation. 

The whole histoiy of the Voting Rights Act of 1964 and its amend- 
ments is based on, you know, enormous support and enormous legal 
analysis. Enormous factual analysis showing substantial, significant, 
nonending problems where the good faith assumptions that our country 
placed upon local governments were not being met and we designed 
and devised specific remedies. 

We shifted burdens of proof. We took things out of State court. We 
put it in the Federal district court. We gave the Attorney General a 
role and so on. 

There is not that pattern of evidence with respect to Indian gov- 
ernments 

Congressman Meeds. I understand that. 

I am in effect, disagreeing with the general statement that you 
simpl} 7 sit back, as I understood Mr. McXickle's statement yesterday, 
and there are obviously degrees and we are talking in degrees. Rut, 
the general concept that brings them to work themselves out is kind 
of foreign to my belief; that sometimes it is necessary for a govern- 
ment to take actions which dictate, in effect, a course of action, rather 
than to simply allowing things to work themselves out. 

Mr. Wilkinson. Well, I think implicit in this recommendation, 
Congressman Meeds, is that Congress took very substantial, and in 
the eyes of mam^ Indians, extreme action of exactly this kind in 1968, 
and applied due process, equal protection, many bill of rightsfguaran- 
tees to the tribes. 

There has been a mountain of litigation under that act. There have 
been actions against tribal governments that have been overturned. 



95 



Many others haven't been, but that act provides an extremely sub- 
stantial safeguard for Indians and non-Indians alike who chiim abuses 
by the tribal government. It is not a popular act in Indian country. 
It was, as I say, a very substantial action by Congress, and I think 
exactly the kind you are suggesting. 

Mr. Alexander. We are not suggesting that Congress should not 
act where there is a significant showing. 

We are suggesting that Indian governments have been hobbled by 
the lack of funds, by impositions of other systems and that Indian 
country is trying to develop its own systems and that they need sup- 
port and there well may be abuses which develop which require- specific 
congressional action. 

There is an important point that gets back to what Peter has said 
earlier, and what Mr. McNickle said earlier about the assumption 
about tribal government. 

The evidence before Congress on the 1968 Civil Rights Act showed 
that most — and on Public Law 280, where law enforcement became a 
very substantial issue, the term used in congressional debates often 
was a hiatus in law enforcement — the evidence showed that much of the 
problem was due to the lack of significant resources to run the systems. 

The evidence on the field hearing by Senator Ervin's subcommittee 
showed as much, if not more, substantial abuses in the law enforcement 
pattern by non-Indian government against Indian citizens in border 
towns. This evidence is overwhelming. There are cases, there are case 
studies by Federal Government institutions; but the assumption 
seems to be, and that is what we are challenging, that Indian govern- 
ments are somehow inherently less competent than non-Indian 
governments. What we are saying is that assumption is not valid and 
that they deserve the same basic operating principles, which is that 
they will act fairly and competently and judiciously and that they 
need support. 

We've talked about the 1968 Civil Rights Act and the cases arising 
under it. I would submit to you that the pattern of litigation under 
the — in 1968's Indian Civil Rights Act is substantially less than it is 
for non-Indian governments in terms of abuses of power. 

We cannot point to one case, one single, solitary case where an 
Indian government has been shown to abuse the taxing power, which 
is a heavy, emotional issue that is raised time and time again in 
field hearings. We get allegations and we ask non-Indian citizens to 
testify in the field hearings. We never got a specific example. We never 
got a case. There is not a reported case and we've looked. 

Mr. Bruce. May I ask a quick question? 

Is it possible that under 2 here, that you say sovereign authority 
of the tribes is the right of the Indian people to form their own tribal 
government? Does that mean that it's possible to have more than one 
government on a reservation? 

Mr. Alexander. I would submit to you the Hopi situation. They 
have a central government and they have delegated authority, some- 
what similar to a State, to local governments to run municipal services. 
The Hopis have a central government in the nature of a centralized 
fState government, they have local governmental authority. But what 
that term really means is that an Indian government does not have to 
look the same, whether it's located in South Dakota or be located in 



i 



96 



the State of Washington; that the form and focus and the function of 
Indian government should be allowed to vary as the local history, 
needs, and culture dictate. 

I think Commissioner Deer's own example of the Menominee and 
how they drafted their constitution to take into their needs in coordi- 
nation in their whole process with their local governmental official-, 
and a strong point of issue with the State of Wisconsin is a classic case 
example of an Indian government designing for their own needs. 

Mr. Bruce. What about the traditional people. You know, if I 
don't like the way my tribe sets up its government, can I gather 
together a few people and set up another one, or can I say that our 
tradition is thus and so on, and we want that, and that is the situation 
as a Commissioner I used to get into. Don't listen to this IRA group, 
white man's group — come down here, we're meeting down here, 
traditional people who are the original. 

What do we do about that? 

Mr. Alexander. I don't think we're suggesting that tribal govern- 
ments in a particular tribe split up into three or four different govern- 
ments. That's suggesting that those tribal people who have a con- 
tinuum of a history together and a political identity be allowed to 
choose the system of government that meets their needs and whatever 
traditional components and whatever U.S. governmental concepts. 

There are many forms of government in this nation that work for 
different people. 

Mr. Bruce. Don't you think we ought to deal with that traditional 
thing; it's real? 

Mr. Taylor. I don't want to interrupt the conversation you're 
having on this, Commissioner. 

Yes; I believe that traditional governments could be formed. I 
think I have been sitting here biting my teeth waiting to get back to 
Mr. Meeds on the application 

Mr. Wilkinson. Anybod}^ who can look forward to a confrontation 
with Congressman Meeds is a hell of a man. 

Mr. Dial. Most tribal governments: Do you consider a republican 
form of government? 

Mr. Alexander. I think there is an interesting phenomenon. Most 
tribal governments today are basically structured to look somewhat 
similar to a traditional Western European government. 

Even when Congress passed the 1968 Civil Rights Act, many of the 
tribes pointed out that similar provisions were contained in tribal 
constitutions. There is divergency. The Iroquois Confederacy in New 
York State and going through Canada has a different form of govern- 
ment. The Pueblos have a different one, but most would be — would 
seem to be 

Mr. Dial. Most would seem to be republican in form, that is electing 
officials ; right? 

Mr. Alexander. Yes. 

Mr. Dial. But all would appear to be democratic; correct? 
Mr. Alexander. Limited. 
Mr. Dial. Limited democracy? 

Mr. Alexander. In the Pueblo situation there is a mix between a 
theocracy and an election system for Pueblo councilmen. 



97 



Mr. Dial. If the people of the tribe, you know, are perfectly happy 
with this existing government, whatever it happens to be, let us 
assume it's a theocracy, isn't it somewhat a democratic form of 
government if they allow it to exist and if they want it to exist as 
such? 

I'm sure you are not implying that any tribe is imposing a govern- 
ment on their members that the members, you know really oppose, a 
majority of ■ 

Chairman Abourezk. Would you yield that point? 

Mr. Dial. Yes. 

Chairman Abourezk. A more specific way that I would like to 
ask that same question is: Isn't it true that it is a democracy unless it's 
imposed by some kind of force upon the people; if they accept a 
theocracy, that in effect is a democracy, because it's the body of their 
will? 

Mr. Alexander. If the government rests on the consensus of the 
people, then it's a government of the people. Democracy is not an 
Indian term, necessarily. It is not necessarily an Indian term. It is 
our term. 

Most governments and the information here is somewhat distorted, 
because most of it comes from anthropologists, rested on consensus. 
They are a consensus system. 

Mr. Dial. But it's not a white man's term. If you try to define 
it, you know, we can't define democracy. The minute we try to define 
democracy it is no longer that, so I am simply saying that we can only 
say that democracy has certain characteristics and that the various 
characteristics that we find in tribal government seems to me that if 
the people like it and they want it to exist, that is probably more 
democratic values in tribal government than we are willing to accept, 
maybe. Right, Pete? 

Mr. Taylor. Commissioner Dial, I would like to respond to that. 
I would say that you are right, that in fact what the 1934 Reorgan- 
ization Act did, and the constitutions that were drawn up under it 
is, induce tribes into adopting a constitution. 

I'm not going to say those were imposed, so I'm going to phrase it, 
induce them into adopting a constitution, which put tribal chairmen 
in office for terms of 2 to 4 years to head this tribal council. 

The significant point to me is that they put the tribal chairmen in 
for a fixed term of office. To me that's foreign to the way the Indian 
nations did it in the plains areas. I frankly would like to see those 
tribes — No. 1, I would like to see Interior Department advise them 
that there are alternative ways of organizing their government. There 
is a real lack of imagination in that department over there. 

I think a parliamentary system would be very close and akin to the 
traditional way those plains Indians were organized. We were talking 
about it last night. Pick up AMJUR and read why we couldn't 
recognize tribal governments. 

We couldn't recognize them because they were so damn democratic 
we didn't know who the leader was. People followed who they re- 
spected and when they stopped respecting him, the}' followed some- 
one else. My God, that's democracy under the Acorn Tree, or some- 



98 



thing, and we couldn't live with it because we didn't know who we 
were negotiating with. 

OK, so we've got to have somebody we can look to and say, well 
this guy is the leader of the tribe. He can sign papers* he can do this, 
but a parliamentary system is closer to the traditional. I cannot for 
the life of me, understand the Department of Interior, 49 years now, 
who haven't gone out and talked about it. 

To get over to this other point, the 1968 Civil Rights Act and the 
Pueblos. There were 7 years of hearings under that act and yet I don't 
believe once the concept of how a tribe forms its government, partic- 
ularly in relationship to the Pueblos, came out in those hearings. 

It may have been discussed, but the act clearly was not designed to 
interrupt that form of government. If that was "the intent of the act, 
then I now understand why the Pueblos want to get out from under it. 

Congressman Meeds. Peter, if I may interrupt you there. I had 
just a little bit to do with the 1968 Civil Rights Act and as I ques- 
tioned the Pueblos about these very things, I was assured by the 
Pueblos that indeed they did not prevent the free exercise of religion. 
The Pueblo chairman knew that he wasn't telling me the truth and I 
knew he wasn't telling me the truth. We all knew that the Pueblos 
impose state religion and we all know there are instances of the Peublos 
running other religions off the reservations and everything else. 

So I hope you don't just take the record as indicating what the 
fact was. 

Mr. Taylor. I don't want to take the record, but you know, I have 
another feeling too, that we keep looking at Indian tribes as if before 
we're going to give them full recognition on this kind of thing, they've 
got to become model cities. They've got to become paragons of virtue. 
What do we do with a guy out here in Prince Georges County that six 
cops put 54 stitches in his head and the Department of Justice after — 
you lived here many years, you know what's happening in Prince 
Georges County, and the Department of Justice won't investigate it. 

Congressman Meeds. I've lived in Prince Georges County for 
several years. 

Mr. Taylor. I won't live there. I live in Arlington. 

And this FBI thing. You know, we talk about it. We're so worried 
about tribes and my God, there's no evidence of these abuses against 
the Indians. Look what the FBI did in Pine Ridge and I don't know 
what they're doing at Menominee right now. 

I do know that one appropriate answer to it is, Senator Abourezk, 
what you did in the last term of office. You introduced a bill that 
would provide statutory guidelines for when the FBI puts on their 
flack jackets and get out there with helicopters. They need that. 
They need guidelines. 

The Secretary of Interior needs guidelines on recognizing tribes. I 
feel sorry for the Secretary. For a radical guy, I think I'm awfully 
darn conservative. He does need guidelines and }~ou are right too when 
you say that we need guidelines on State and tribal cooperation. We 
do need to come up with that. But I'm 100 percent behind Charlie 
when he says the first step is recognize these people as governments. 

If Congress will say yes, by God, John Marshall was right and so 
was Thurgood Marshall, States will start to talk to tribes. 



99 



We also have to trust that the tribes are going to be responsible 
and this is the premise of S. 2010, the Public Law 280 thing. I've 
said that at conventions of small tribes. I remember when it was an 
XCAI convention and the question was why should XCAI support 
S. 2010. Some small tribes actually were opposed to that at first 
because they said we need State involvement with us and we don't 
want to take it away. 

Then it became clear this wasn't forcibly removing the State, it 
was putting in the hands of the tribes the option to say how much 
they want the State involved; and once the State gets involved, if 
the State really screws it up, they can pull it back and say, no, we're 
going to do it ourselves. 

These kinds of options are really vital and it really is what we're 
here about. 

Chairman Abourezk. I think it's now a good time to break for 
lunch. 

Congressman Meeds. Could I just kind of summarize at least 
what I feel, however, that this section provides. It is a denial of one 
of the basic rights of all Americans, or a basic tenet of our constitu- 
tional form of government ; that government derives its power from the 
consent of the governed. Paul, if you read it and literally interpret it, 
it means that you can have a government which is a theocracy. You 
can have a government which is a dictatorship; a government which 
is parliamentar}* form. Or you can have any other form that those 
who have the power on a reservation or within a tribe wish to impose. 
There is no right for those who are involved in the establishment of 
that government to vote for it. 

Xow, is that an incorrect statement? 

Mr. Taylor. I would agree that it violates our Anglo-Saxon con- 
cepts of the way things should work, but we're also looking at the 
external surface of this thing. 

I think probably Don and Paul are right when they say that these 
governments are responsive to their people and they really do rest 
on the consent of the people who are there. 

The one comment I would make is, that from what I've seen in 
Pueblos, most of them are so small they could have their own 1776 
if 12 guys would pick up a shotgun, you know, and if the system is 
not resting on consent, we would have had 12 guys pick up a shotgun. 
A little revolution to have their own constitution. 

Congressman, I suggest that the people in Pueblos like the system 
that they have and the day they don't like it they will do something 
about it. There isn't an individual that's filed a petition with the 
Department of Interior to suggest preventing those things. 

Congressman Meeds. That is so reminiscent of statements that 
used to come out of the South, that blacks like the situation they 
have. So reminiscent, Pete. 

Mr. Alexander. But I guess the difference here is in that situation 
you had the white Governors and attorneys general of those States 
testifying. 

Mr. Summer of Mississippi is probably the classic example of what 
we're talking about here. This comes from field hearings on the 
Indian people and not just tribal chairmen. People have problems 



100 



with those tribal governments, nobody is denying that but when you 
follow up and say how do you want to resolve that and they Bay we 
want to resolve it in our tribal government, we want to build those 
mechanisms in our tribal governments that meet our needs. 

Those Indian people were not telling us in our field hearings across 
the country that they wanted the Federal Government to come in 
and impose structures and standards on those tribes. They wanted 
the Federal Government to provide the support mechanisms to help 
them to develop the full governmental systems that met their local 
individual needs. 

And we had complaints. We had complaints from councilmen, we 
had complaints from individual Indians about how a particular house 
was allocated and so on, but they wanted to be able to develop those 
mechanisms and those remedy systems through their tribes. And they 
suggest remedy systems that are different from those that are used 
by the States and that are used in the Federal system. 

Some of them are innovative and some are creative. I've seen more 
responsible tribal government than I've seen in my own county which 
has a good reputation. Those tribal governments go on their local 
television and radio shows every Saturday morning and inform the 
people of what's going on and use newsletters. There is more local 
going on on those tribal levels, there's more creativity coming out of 
there today. I would rather be in Judge William Rhodes' tribal court 
than in most courts of the State of Maryland if I got arrested for 
something, because that man is fair and just, and those tribes are 
creating viable, evolving systems that need support and need to be 
different. 

Mr. Dial. I believe we will have one more statement before we go 
to lunch, right, Mr. Chairman? 
Chairman Abourezk. All right. 

Mr. Dial. Paul, the Constitution of the United States guarantees 
the States a republican form of government, right? 

Mr. Alexander. The Constitution of the United States is a grant 
from the States to the Federal Government, delegating authorities 
for the Federal Government. 

Mr. Dial. OK, yes. Now, no amendment of the Constitution, the 
original Constitution, the original articles, no amendments — what 
do we have now, 25 or 26, denies tribal government or says that 
tribal government has to have a republican form of government, 
right? So, we would assume then that certain inherent rights reside 
within the people of the tribe to determine their own destiny in the 
way of government as long as it doesn't make war on the United 
States. 

Mr. Alexander. You're back to 1789 which is the — the answer is 

yes but there are 

Mr. Dial. OK. 

Mr. Alexander. There are two minor clarification points. The 
tribes were not a party to the U.S. Constitution. The mention of the 
tribes are in that the United States took unto itself the authority to 
regulate Indian nations from which in this legal system stems the 
plenary powers doctrine. 

Mr. Dial. The whole idea though is there is nothing there to deny 
in fact. 



101 



Mr. Alexander. No. 
Mr. Dial. OK. 

Chairman Abourezk. We'll be in recess until 1:15. 
[Whereupon the meeting was adjorned at 12:15 p.m? to reconvene 
at 1 :15 p.m.] 

Afternoon Session 

Chairman Abourezk. The session will resume. The chamber will 
come to order. 

J want to just inform the Commission that we are going to have to 
discuss on, probabty, Monday a question of revising dates for ad- 
ditional markup sessions and maybe we will have to discuss extending 
the time for the submission of the report and I have asked Ernie 
Stevens to put some stuff together for purposes of that discussion. 

AYe'll spend a short time on that Monday, because as more and 
more people are coming up and telling me that certain timetables are 
vital and so on and it's something we're going to have to take up and 
deal with. Where did we leave off? 

Mr. Alexander. We were on page 10, No. 2. Inherent in the 
authority of the tribe is the right of the Indian people to form their 
own tribal government in whatever form they choose. 

Chairman Abourezk. All right. 

It seems that we have gone rather thoroughly into that subject. 
I'd like to move onto the next one, unless there is a member of the 
Commission who wants to discuss that further. 

Congressman Meeds. Mr. Chairman, I won't dwell on this, but I 
think it's something that we certainly have to consider. We've con- 
sidered the authority — the form of Indian governments. We have not 
discussed over whom this control and authority reaches, and I think 
I know the answer of the Panel. However, we should discuss it just a 
little bit. 

If I have the basic philosophical problems with the concepts of 
total sovereignty and the right of tribal governments to choose forms 
alien to my Anglo-Saxon concepts of government over Indians, I 
have the same kind of problems in the assertion of those powers over 
non-Indians who do not have any voice in the promulgation or exercise 
of those powers. 

Let me just give an example: the power to tax on Indian reserva- 
tions. Let's use a reservation which encompassing checker boarding 
in which non-Indians have resided for many years and received title 
to their lands because of expansionistic policies by the Federal Govern- 
ment. The non-Indians acted, in good faith. Let's say a decision is 
made by the governing body of the tribe to impose taxes or for that 
matter to assert any of the powers of the tribe. These non-Indian 
people have no right to vote or participate in the decisionmaking 
which leads up to the decision to tax or to assert any of the other 
powers. 

How do the task force reports or the recommendations of the 
Panel deal with that problem. 

Mr. Wilkinson. Well, first of all, Mr. Vice Chairman, the report 
does recommend that Indian tribes continue to have jurisdiction over 
non-Indians, and in the area of taxing specifically. That recommenda- 
tion will come up soon. 



102 



Congressman Meeds. In another place; perhaps we should wait 
then. 

Mr. Alexander. About page 58 of this chapter, when we get into 
very specific jurisdictional issues, 58 B and C. 

Chairman Abourezk. Of the same chapter; if it's in this chapter 
you may as well discuss it now rather than putting it off. 

Mr. Wilkinson. All right. First of all, I know I am repeating my- 
self, but it is important to repeat this. Congressman Meeds, the staff 
recommendations do not involve a concept of complete sovereignty, 
of total sovereignty. It is a limited sovereignty, as all sovereignties in 
practical terms are, and so we are not talking about total sovereignty. 

The Congressman poses an example of taxing non-Indians. I wish 
to make it clear on the record that the most exhaustive series of 
hearings in the history of Indinn affairs has uncovered, to my knowl- 
edge, no example of any claim of unfair taxation by any Indian tribe. 

So we are talking about a situation that has not been shown to exist. 

Congressman Meeds. Before we get sidetracked, I used the tax as 
an example. I don't have to use that. We can say any decision which 
affects the lives of people who reside in an area by a body in which they 
have no say, no vote, no representation, and so on. 

I used the tax as an example, just as a measure which would be 
representative of this broad area of decisionmaking without the input 
of those who are affected. 

Mr. Wilkinson. All right. I think it is appropriate to begin by 
saying that those same hearings uncovered very, very few, and I 
think we're talking about one or two examples of non-Indians claiming 
abuses by tribal councils of the kind in your hypothetical. 

There are concerns 

Congressman Meeds. Well, they didn't hold any hearings in north- 
west Washington then, I have to say that. 

Mr. Wilkinson. Well there might have been various reasons. 

Congressman Meeds. That's beyond the point. I'm asking a theo- 
retical question. 

Mr. Wilkinson. All right. First of all, I think there is a series of 
decisions by the Supreme Court of the United States that in my 
judgment is extremely important and hasn't been mentioned yet. I 
think it might be worth mentioning. 

In Morton against Mancari, a 1973 decision ; in Fisher against District 
Court, a 1976 decision ; and in Moe against Confederated Tribes, a 1976 
decision, the Supreme Court of the United States for the first time, I 
think, spoke with absolute clarity to the question of equal protection as 
it applied to Indian tribes. 

In Morton against Mancari the Court found that a hiring preference 
in the BIA in favor of Indian tribes was not unconstitutional, because 
it wasn't based on race, it was based on a political relationship. 

In the Fisher case an Indian was not permitted to go into State 
court because the situation involved a guardianship which had reser- 
vation contacts. The Court found then that Indian matters must go 
only to tribal court and that that's not a violation of equal protection 
because a tribe is a political body. 

It is also established that tribes have the power to determine their 
own membership. Those principles taken together, along with many 
other statements and cases, I think, make it clear that existing law does 



103 



prevent the kind of situation the Congressman is speaking of. But, I 
think the Congressman is going further than asking i:, this fair, lie is 
asking whether it should eontinue. And I wish to emphasize that it is 
another extremely fundamental question as to whether non-Jndians 
should somehow have the right to participate in tribal government. 

The clear message from Indian country is no. The belief is unanimous, 
I think, that tribal governments are tribal affairs and should be 
limited as such. 

Now, if a non-Indian claims to be in anyway disadvantaged by 
action of the tribal council there is an extremely sophisticated and 
adequate series of remedies under the Indian Civil Rights Act of 
1968. And again, I emphasize because I think it's so crucial, the 
equal protection and due process provisions have been applied to the 
tribes under the Indian Civil Rights Act. 

That speaks directly to questions which I suggest are hypothetical 
at this point, but nonetheless clearly should be inquired into, con- 
cerning discrimination on the basis of race. 

The Civil Rights Act does speak specifically to that and it permits 
recourse to the courts. That is not an act which is favored by tribes, 
but it exists and does provide those kinds of remedies. 

I would suggest again as a final matter, what in my judgment, 
is one of the four or five most basic principles that the staff has rec- 
ommended to the Commission. I just think it is so terribly important 
and ought to be a guiding principle for congressional policy. It speaks 
directly to the Congressman's question. It is the very simple statement 
on page 56B, which could go a long way to determining how Congress 
is going to deal with Indian affairs in the future. 

This is the finding that staff recommends the Commission endorse 
that I believe is most directly relevant: "Federal policy concerning 
tribal sovereignty must be premised on the assumption that when 
confronted with options the Indian people will act intelligently, 
responsibly and fairly when exercising powers of self-government." 

There has been no showing that tribes are acting otherwise. Congress 
so often only acts when there is a substantial showing and where 
there is a serious situation involved. There has been no such showing 
here that the tribes are acting otherwise. It just seems to me that 
recognizing the fundamental principle that has just been suggested — 
that tribes act fairly — is not only an appropriate way for Congress 
to act but is based on emperical evidence that has been discovered 
in the field. 

Congressman Meeds. Are you aware of any cases that have been 
brought in any courts in which non-Indians have alleged a violation 
of the equal protection provision of the Constitution because they 
did not have representation or an input of some kind in the decision- 
making process in tribal bodies which regulate them? 

Are you aware of any cases involving that basis? 

Mr. Taylor. Congressman Meeds, there is total silence from this 
table, which I can only interpret is that all three of us answer no, we 
are not aware of any. 

Mr. Wilkinson. I'm not aware of one. I am aware of cases brought 
up in the act by non-Indians but not on the point you suggest. 

Congressman Meeds. You are aware of the case of Baker v. Carr 
which the U.S. Supreme Court held, in effect, that due process in- 



104 



eluded not only the right to have representation, but that represen- 
tation had to be based on a proportion of the population of which 
was meaningful? 

That is to say equal protection meant equal input in the selection 
of those who represent the Government. 

Mr. Wilkinson. Yes; and that dealt with the republican govern- 
ment clause, I believe, which is not involved here. 

Congressman Meeds. Well, I think it dealt also with the equal 
protection clause. 

Mr. Wilkinson. Yes; it did. 

Mr. Taylor. Also, Mr. Meeds, it dealt with State compliance with 
their own constitutional requirements and Baker v. Carr was limited 
to one man, one vote in the House of Representatives. There was a 
second case 1 year later that extended that doctrine to the Senate in 
the State Governments. 

I can't recall the name of that second case. It's my personal opinion 
and it always has been that the Supreme Court rewrote the history of 
this country in that decision. I think they were absolutely wrong in 
that second case, but in Baker v. Carr the}' finally said, after I think 
40 years of efforts, to get reapportionment cases into the Federal 
courts, they finally said, well, we said it's a political thicket but at 
long last we're going to step in and do what we should have done 40 
3'ears ago. 

Congressman Meeds. Well, let's assume that the theory of Baker v. 
Carr was applied by some non-Indian within the borders of a reserva- 
tion who was affected by a decision over which he had no representa- 
tion and no input. Don't you think a court might hold that "due 
process" means that people who are affected by the decisions of tribal 
councils, in which the}' had no input, might be denied equal protection? 

Mr. Wilkinson. I would be deeply surprised. 

The Supreme Court has made a series of decisions involving the 
Navajo Nation, concerning questions involving non-Indians. I'm not 
suggesting that the question you are raising was discussed by the 
Court. But there has been such a continual ratification by the Court 
of the Navajo form of government, the Court continually pointing to 
it in a very positive way and emphasizing the strength of that govern- 
ment, that it would just be very surprising, and I know of no case 
which would support that kind of result. 

My recollection is, and I should have it in front of me but I don't, 
that the recent ninth circuit decision in Otiphant against Schlie dis- 
cusses the argument that you are suggesting. But I am not suggesting 
that it isn't a question worth raising. 

I just would find it very hard to believe that a court would rule 
that way. 

Mr. Alexander. The Baker v. Carr typecases under the Indian 
Civil Rights Act pertained exclusively to Indian acts under reap- 
portionment with a councilmanic district and there is in Groundhog 
and Keeler a finding that it was not the legislative intention to force 
tribes into a republican form of government for Baker v. Carr purposes, 
however, so — the following line of cases, where tribes selected such a 
form of government and used council districts they would be held to 
those standards. 



105 

So, the courts are fairly consistent in this area in not taking the 
whole voting reapportionment line of Federal cases under the 14th 
Amendment. 

Congressman Meeds. As to Indians? 

Mr. Alexander. Yes; those cases are as to Indians. 

Mr. Wilkinson. Now I want to return briefly, and T hope tins is 
even more responsive, to the recent cases involving equal protection. 

They hold that an Indian tribe is a political entity, a govern- 
mental entity and not a racial entity. We have lots of noncitizens in 
the United States who can't vote. The noncitizen of the tribe residing 
on the land should be in the same position. If that person has not 
been accepted into the tribe, into the political entity, that person 
should not be permitted to participate. 1 really am satisfied that 
that is how the court would come down. 

I feel obligated to repeat that any question of permitting non- 
Indians to vote in tribal affairs would be one of the most extreme steps 
of abrogating tribal sovereign^} 7 that the U.S. Government has ever 
taken. 

Congressman Meeds. But you wouldn't deny that Congress has the 
power to do that. 

Mr. Wilkinson. There is no doubt in my mind that Congress 
has the power to do it. I just start thinking of the mid-1950's when I 
think of that kind of concept. I think it's that fundamental. 

Mr. Taylor. I would condition that remark to the extent that 
Congress would have the power to deny recognition to the acts of 
tribal governments over non-Indians, unless the}^ allowed non- 
Indians to participate. The Congress does not have the power to open 
up the tribal political process and allow non-Indians to vote in those 
tribal processes. You can condition the power of that tribe but I 
would say that it's beyond the jurisdiction of the United States to 
open up the political processes of the tribe and dictate electoral 
process. 

Mr. Alexander. The part about beyond the jurisdiction of the 
United States needs to be expanded on and that is simply a point 
that it is the U.S. courts that determine what the U.S. jurisdiction 
is and to repeat what was said to us frequently in Indian country. 

The question of the power of the United States which is based on 
its system is a question of might in its final analysis. 

So that needs to be stated. 

Congressman Meeds. Isn't any legal system, in the final analysis, 
based on the ability to enforce. Isn't that what you are saying? 
Mr. Alexander. Yes. 

Congressman Meeds. I wouldn't disagree with that. 
Mr. Whitecrow. Will the gentlemen yield? 
Congressman Meeds. I have finished. Thank you. 
Mr. Whitecrow. Thank you. 

I would like to find out just exactly where we are now for my own 
personal information. 

Let me tell you what I think I understand after all of this conversa- 
tion now. I think that it's my understanding now that we are rec- 
ognizing that a tribe is a government, that a tribe has sovereignty, 
that a tribe would have jurisdiction over its geographic boundary area. 



106 



Now, one of the questions that I understand is under consideration 
here is whether or not non-Indians would have legal voting rights 
within that tribal area. 

Now, one of the questions as I see it, is the fact that a tribe has the 
right to determine its own citizenship. I would like to pose this ques- 
tion to the staff. 

Supposing a tribe then assumed a jurisdiction over its geographic 
boundary, applying its sovereign right, coming under the plenary 
owers of the Congress, recognizing all of those citizens within its 
oundary as members of that tribe. 

Now, we're getting away from blood relationships here. In this 
event then, would the Federal Government still be responsible for the 
delivery of services to all those tribal members whether or not they 
were of Indian descent? 

Mr. Wilkinson. Well, 111 answer that, and I hope people will 
speak up, if they have an addition to make. 

I believe right now, under present practices, that the Bureau would 
not provide those services. In my judgment that practice is highly 
questionable, that it may well be required of the Bureau to recognize 
that tribes have the power to determine their own membership 

Mr. Whitecrow. Say for instance we did. Say for instance this Com- 
mission did come up with this recommendation, that allowing a tribe 
to assume those jurisdictional processes and recognizing the fact that 
the tribe has the sovereignty to do so. Then, if the tribe or then those 
non-Indian persons residing in its geographical area as members of its 
tribe, would we not have to recommend legislative action also to ex- 
pand those treaty rights? 

Mr. Wilkinson. I think that the kind of problems j^ou're sug- 
gesting would come up. Yes. I think that there would be a number of 
additional acts that would have to be passed to account for this 
unusual situation. Yes. 

Mr. Alexander. To get back to our trust discussion of yesterday 
of the prime obligation of the United States being to the political 
entity of the tribe, they will decide the notion of social services from 
that moment. There would at least at minimum, be an obligation to 
support the government and the resources of that population and the 
government services which relate to the permanency of that 
government. 

Mr. Whitecrow. It goes back to my basic question from the initia- 
tion of this whole Commission. 

Did the Federal Government make treaties with quarter blood 
Indians, did they make treaties with half bloods, full bloods or did 
they make treaties with tribes; and did they at that time tell the 
tribe who its members were? 

Mr. Alexander. The Federal Government's relationship is a polit- 
ical relationship between a government, the United States and a tribal 
political unit, a tribe. Not treaties with individual persons and not a 
political relationship with individual persons. 

Mr. Whitecrow. Well, knowing Indian people as I do, I am sure 
that ven^ few of them would actually accept any non-Indian into the 
tribal membership. I'm sure this would never come about. But what 
I'm trying to get over here is what kind of process could be developed, 



107 



whereby the non-Indians in that geographic area could have some 
form of representation. 

Mr. Wharton. Specifically to respond to that, Mr. Whitecrow, it 
wouldn't require a tribe to accept into its membership as a member 
of the tribe, all of the non-Indians within its territorial jurisdiction to 
accomplish what it is that you're getting at. 

A tribe for instance, to take the example of taxation could set up 
specific taxing districts in which non-Indian people could have repre- 
sentation and a vote with respect to specific things like taxation, like 
zoning, like environmental control which would not require member- 
ship in the tribe but would allow them representation in those issues 
which specifically relate to powers being exercised over them on those 
kinds of issues. 

Mr. Whitecrow. I suppose what I'm getting at here is the fact 
that a tribe would have — if a tribe has sovereignty, a tribe would have 
that sovereign right to determine its membership the same as the 
U.S. Government has the right to determine who is a citizen of the 
United States; is this not correct? 

Mr. Wharton. That's correct. 

Mr. Alexander. On Mr. W T harton's point, there is an example as 
I understand it that came up in our northwest hearing where the 
zoning commission has non-Indian representation on it. 

Different governments organize all of these functions differently. In 
some States we have appointed school boards. In some places we have 
elected school boards. The populations that respond or choose those 
entities that exercise zoning power, taxation power, education power 
are defined by the government. But, they may be appointed, they 
may be elected, for some purposes they may be narrow districts, they 
may be broad districts. 

All of this though, negates one point in the tribes obligation under 
existing law in exercising any of these functions, it still has to use 
fundamental due process — the administrative due process. 

If you are determining to zone someone's land, they have hearing 
rights, they have the same rights that you have as a citizen in Okla- 
homa with a piece of land in Nevada. You have administrative rights 
as to what is done with that land. You have representation, you have 
court action, possible to protect your interest. Which is how most of 
us in fact do protect our interests, through these various and sundry 
proceedings, be it taxation, be it land use, be it an environmental 
issue. 

Commissioner Whitecrow. Well, then what I see here — I don't 
really see a great deal of difference in what we're talking about here 
and what we currently have in existence in the country. 

The fact that when I come into Washington, D.C., or for that 
matter, any of us when we come into Washington, D.C. We pay 
taxes within the District of Columbia. We also pay taxes wherever 
we may go and we don't have representation on those city sales taxes 
and what-have-you, so I can't really see whereby we would have any 
great difference, if we'll say as an example, a tribe would apply a 
sales tax within its geographic boundary area of jurisdiction. 

I can't really see that we're having that great of a problem. Now, 
maybe I'm wrong. Maybe I'm not seeing the whole picture. 

Congressman Meeds. Will the gentleman yield? 



108 



Commissioner Whitecrow. Yes. 

Congressman Meeds. The major difference is that most America]] 
have some representation in the decisionmaking processes in the place 
of their residence. 

It's clear you don't have any input into the decisions of the city 
of Washington, D.C., if you don't live here. But if you do live here, 
you have an opportunity to vote for the people who make the decision 3 
which affect your life where your residence is. I think due process 
requires that opportunity not in South Dakota or someplace else, 
but in the place where you reside. That's the difference. 

Commissioner Whitecrow. Let me ask this question: In that case, 
how about these people who are aliens and they are subject to taxation 
without citizenship? 

Mr. Wilkinson. That is the situation I was thinking of. 

I think that there are many, many people who live here who are 
not American citizens who have no vote at all. However, they have 
chosen to come here and are not citizens of this country. People chose 
to go to an Indian reservation and traditionally did not have a vote 
in that government. 

And, in my judgment, that is not unconstitutional. 

Congressman Meeds. Well, again, there is a distinction there. 
You're talking about aliens who have come into this country 
voluntarily. 

In the instance where an individual goes to an Indian reservation 
and resides, he is an American citizen and he is residing on American 
territor}\ Although it is an Indian reservation, it is still part of the 
United States of America. 

So that's a ver}' substantial distinction. 

Mr. Wilkinson. Well, again, it's the thread of international law 
that weaves through Indian law that is not a figment of anyone's 
imagination. It is not a radical notion. Jt appears in the cases and I 
deeply believe that the analog}- is fair and would be upheld by the 
court that a person choosing to reside in an Indian reservation does 
not have a right to vote in that tribal government and that that is not 
a denial of any constitutional right. They would still have the right 
to vote for State officers, for Federal officers, but not in the tribal 
government. They are not a member of that political unit. 

Commissioner Whitecrow. I would like to ask a question in 
regard to this: If this is the case, and if this is the situation that we're 
looking at without representation, what about the — we'll say the 
nonmilitary individual, entering a military reservation and coming 
under marshal law? 

You have no representation in the development of those codes. 

Mr. Wilkinson. I think that's right. 

Mr. Alexander. His representation just to take the point that 
Charles made a while ago, his representation and his vote is through 
the U.S. Congress. 

Mr. Taylor. I have a little difficulty debating these questions on a 
high theoretical level and I think it might help if we talk about some 
cases. 

First of all, on a theoretical level I would like to express my agree- 
ment with Mr. Wilkinson and Paul. But, it occurs to me we're dealing 
here with some very practical problems and if the tribe is going to be 



109 



the primary government within the reservation, it has certain re- 
sponsibilities. Hopefully in the long run, what we're aiming for in 
tribal government is that they are economically independent , thai t hej 
function on the same financial base that the other governments in 
this country are functioning under. And J think thai the due process 
protection under the 1968 Civil Rights Act provides a cushioning 
effect here, which tends to cut out arguments of non-Indiana aboul 
their fears. 

But, when we start talking practical cases, I was at Lummi Res- 
ervation 'and that reservation sits on a peninsula, a very attractive 
land out there and non-Indians have purchased parcels of land out 
there and built nice homes. And Congressman, I'll have to defer bo 
you on this one, but I don't think there is a fire station within a good 
many miles of that place. Now if the Lummis are going to have 
government and one of their functions is going to be to deliver fire 
protection, the obligation should be to deliver that protection on a 
nondiscriminatory basis to everybody on that reservation. 

By the same token, they should have the tax power to raise the 
money to buy the fire engine to go fight those fires. 

That's the kind of tax authority we're talking about. Ada Deer 
Reservation, Menominee, with just 300 non-Indians — are we going 
to say that 2,300 Indians have to pay for the fire engine that has to 
also be used to help those 300 non-Indians? 

I think those people have an obligation to participate financially. 
Now, I do like the idea and I hear this thing about Yakima. 

It more or less supports a paragraph in here that tribes are going 
to act intelligently. There they've come up with a system on their 
zoning ordinances where they are allowing the non-Indian participa- 
tion in the development of these decisions. 

I really think the record, if we stop and take a look at it, time and 
time again will show tribal cooperation or at least the extension of 
the hand of cooperation. 

Congressman Meeds. Peter, if I may depict a bad example. The 
Lummi Reservation is in fire district 13 as a matter of fact. It's a 
very bad example of what you are trying to point out. The facts are 
just the opposite. 

The fire district which covers the reservation is a fire district under 
State law. The fee holders are the only ones who are taxed for it. An 
average of 78 percent of the calls are made for Indian homes and 
families, yet the Indians pay not 1 cent toward the maintenance of 
that fire district and the non-Indians are incensed about it, and I 
don't blame them. I've met twice with the tribal authorities there. 

On one occasion I met with Sam Cagey, on another occasion with 
Vernon Lane. In the meeting they indicated they agreed that it was 
not a good situation and that the tribe ought to be participating and 
that they would try to see that the tribe did participate. The first meeting 
I had with Sam Cagey was about 18 months ago and there's been no 
participation from the tribe as yet. I hope it will be forthcoming. 

But, that is not a good example and I want you to know that. I 
wouldn't have pointed that out except for the fact that }^ou brought 
it up. 

Mr. Taylor. I'm glad we hit on this because these are the kind of 
hard cases that are bothering you and they are bothering me. I thinl 

82-749— 77— vol. 4 8 



110 



the example of Lummi — it's too bad T chose Lummi in view of the 
response, but it does show, I think we are getting this out — what we 
are trying to say in this document, perhaps Quinault or Warm Springs 
would have been a better example or Menominee, but it's pointing 
two things. It's pointing, I think, to allowing these governmental 
processes to go. It's also pointing to the need of Indian tribes toward 
accepting responsibility. This Commission, we have to point our 
fingers at every sovereign in this country, that Indian tribes are not 
exempt from that, but so are States, counties, municipalities, Congress 
and the Executive. 

Mr. Alexander. But, it will also take us one further step, which 
is something we were discussing this morning, which is a need for a 
mechanism to work out the intergovernmental relations supported 
by the Federal Government. The situation on Lummi, on the fire 
district could be in total reverse. 

It could be northern California or southern California where there 
is denial of fire services to Indians. In the Colville Reservation, you 
have had an example for quite a number of years before the tribe 
started its own police department of a substantial economic contribu- 
tion to the county sheriff's department in the six figures. And you 
now have a situation where a tribe is frustrated by the lack of the 
ability to get appropriate nondiscriminator services from its non- 
Indian neighbors and has reasserted its concurrent jurisdiction on 
law enforcement and has done it to such an extent that non-Indian 
governments in the area are contracting services from the tribe, in- 
stead of from the non-Indian county. That type of tribal government 
needs to be supported and mechanisms need to be established and 
developed to try to help this process along, which takes us back to 
where we were this morning. 

Commissioner Whitecrow. Mr. Chairman, I certainly wouldn't 
want to put one of our fellow Commissioners on the spot here, but 
we have one of our Commissioners that is the chairperson of one of 
our recently, newly recognized Indian reservations and I recognize 
Commissioner Deer as a very able and capable individual, fair in all 
respects, not only to the Indian but to the non-Indian alike, and I 
would like to ask a fellow Commissioner how you view this particular 
situation, jurisdiction, sovereignty and due process whereby you 
would provide services, provide for relationships with the non-Indian 
in your reservation area. 

Commissioner Deer. That's a big question. I was just commenting 
to Congressman Meeds about it, and our situation and Menominee. 

We do have a cooperative relationship with the county government. 
We do have contracts that have been negotiated between the Menom- 
inee Restoration Committee and the county government for different 
arrangements. 

We feel that being in the majority, both in the restoration committee 
and in the county government, and I must say, that 11 of the members 
of the county board of supervisors are members of the tribe, that we 
do have an obligation to the non-Indian in our area. 

In response to your question about the jurisdiction, I would point 
out by reading earlier of our association of jurisdiction in our 
constitution. 



Ill 



Now, of course we realize that there perhaps will be court cases 
on this but this is what we are doing now, asserting our jurisdiction 
and I think that this is what tribes need to do aero— tie country, 
assert some of the sovereignty and jurisdiction that bas been eroded 
and has been diminished over the years. 

1 don't feel that in our situation at Menominee that we will have 
an antagonistic situation. That we are taking a reasonable approach 
with the count}?- and with the State; and 1 feel that once our tribal 
government is in full force, that this will continue. 

Now, I don't know if this answers all your questions, Commissioner 
Whitecrow. I'll be happy to respond to any points you think 1 might 
have missed. 

Commissioner Whitecrow. Thank you, Commissioner Deer. 

Just one thing that I think really has a great bearing upon our 
whole total discussion here insofar as recognizing a tribe, its tribal 
government, recognizing that a tribe as a government must begin 
trying to finance itself and function as a representative of the people. 
I would like to go back to Public Law 93-580, a law that really sets 
this up. I would like to read the congressional findings that established 
this particular law. 

Congress, after careful review of the Federal Government's his- 
torical and special legal relationship with American Indian people, 
finds that the policy implementing this relationship has shifted 
and changed with changing administrations, and in the present years 
without apparent rational design and without a consistent goal to 
achieve Indian self-sufficiency. 

That self-sufficiency to me is something that the Federal Govern- 
ment is after, something that the Federal Government really and 
sincerely and truly wants to come about, and the only way that I 
can see Indian self-sufficiency can be attained, is through reestablishing 
a tribal government so that it could become self sufficient. 

If we are really and truly looking at that, I think we must look at 
this as sweeping change and we must realize we are going to have an 
educational process. 

And, Commissioner Deer, I think your attitude and your approach 
to this is certainty a very reasonable and a very intelligent approach 
to what you have going on and I feel that I can speak for all of those 
other tribal leaders that I am familiar with. They too have the same 
concern, the same approach and I don't feel we can look for any kind 
of radical change insofar as their approach to their responsibilities. 

Congressman Meeds. Will the gentleman yield? 

Commissioner Whitecrow. Yes, sir. 

Congressman Meeds. The gentleman just recited some words which 
had some connection. I must say that from time to time I've been 
called upon to eat my own words and I've found them largely palatable. 

Mr. Taylor. I don't know whether we've exhausted this tax thing, 
but I feel that some of these questions like tribal jurisdiction over 
non-Indians — the criminal law field is a good one to examine this in. 

I'm sure all of us at this table have some special situations we know 
of but, you know, law and order is obviously something that is to be 
desired. Non-Indians want it, Indians want it. 



112 



I don't see how you can have law and order if you say that a tribe 
cannot, per se, exercise jurisdiction over a non-Indhm. 

That's a position that the Department of Interior has taken for 
about 40 years. Actually, this case is finally coming up, Oliphant v. 
Schlie, just decided by the ninth circuit. It comes on the Suquamish 
Reservation and, incredibly, the reason thai the tribe took jurisdic- 
tion of a non-Indian was that they had only recently gotten a consti- 
tution or regained their legal status. I'm not sure just what their 
situation was then. They were a very small tribe and they had not 
been told yet that they didn't have jurisdiction over a non-Indian. 
They fell into the thing. 

The first case on the Suquamish Reservation arose on a parcel of 
tribally owned trust land within the reservation boundary. The fact 
situation is very compelling. The tribe was having an annual cere- 
mony powwow or something. Every year there is a very large number 
of people that attend that — that had gone to the reservation. 

The tribe called the local county sheriff and asked him if he would 
station a couple of deputies out there to help maintain law and order. 
His response was, I don't have the manpower to do it; I'll be in my 
office; I'm 40 miles away — I think it was 40 miles — and if any prob- 
lem arises, just give me a call. 

They had a complete absence of law and order authority. Sure 
enough, about 3 o'clock in the morning a non-Indian got crocked and 
a tribal police officer went over to try to restrain him and the fellow 
took a swing at the cop. A very unwise thing ever to do to any police 
officer. So, he wound up in the local jug, which happened to be a jail 
downtown, a non-Indian town that they had a contract with. 

All right. That's the Oliphant v. Schlie case. There's another one 
coming behind it, the Belgarde case. The next question is, does the 
tribal jurisdiction — well, the Federal court upheld the tribal jurisdic- 
tion over the non-Indian in Oliphant. The next case was, does that 
jurisdiction extend to fee patent land within the reservation; and this 
is the Belgarde case. Oliphant is involved in this one, too, only as a 
passenger this time. 

Chairman Abourezk. Is this the same guy that got drunk? 

Mr. Taylor. And I think he's probably drunk again. I want to 
qualify this — I believe he was drunk. I don't want to find myself in 
court as a defendant. 

This Belgarde case involved a vehicle chase around the reservation. 
Now here you have the checkerboard system. Part of the chase was 
on trust-allotted land, part of it w r as on — I guess State-owned land, 
non-Indian-owned land, and probably part on tribally owned land.. 

When they finally pulled Belgarde onto the side of the road, and 
Oliphant was a passenger in the car, the}' were on fee patent land at 
that point. 

The tribe had a brand new police car, pulled it up in front of Bel- 
garde's car so he couldn't move — standard police practice. Belgarde 
got mad, jammed on the accelerator and rammed the police car. Now, 
are we going to say that a tribe doesn't have jurisdiction in a situa- 
tion like this? 

I'm sure that the Federal court is going to say that they do. We 
have to accept the premise that the tribal jurisdiction over a non- 
Indian is not excluded per se. When we start talking large allotted 
reservations, we have genuine problems on land use and taxation. 



113 



But, we cannot have the position — anyone who believes in law and 
order cannot have a position that tribes cannot exercise jurisdiction 
over non-Indians, per se. 

Congressman Meeds. Mr. Chairman, you would not disagree with 
me however, that if the recommendations, which we have before us, 
are adopted by the Commission and implemented by Legislation, 
the Belgarde case would be, in effect, legislatively decided. We would 
also be deciding whether tribes had jurisdiction over a non-Indian 
who committed first-degree murder. 

Mr. Taylor. If we adopted paragraph 1 on page 10? 

Congressman Meeds. Right. 

Mr. Taylor. My answer is, yes, I think we would be legislatively 
deciding the Oliphant case. 

Congressman Meeds. And also first-degree murder. 

Mr. Taylor. Well, you have the 1968 Civil Rights Act, which 
limits tribal jurisdiction to $500 fine and 6 months in jail. It raises 
another question, which is tribal jurisdiction over a major crime type 
offense. 

What you have are separate sovereigns. The Department of Justice 
has taken the position that some Federal court decisions have stated 
that the Major Crimes Act withdrew jurisdiction from the tribes and 
vested it exclusively in the Federal Government. That's never actually 
been clearly decided yet. The Federal case statements on this are 
dicta but the Department of Justice adopts this position. 

I will speak personalty on this one. M}^ feeling, and I know I 
speak for everyone at this table, is that jurisdiction was not taken 
away from the tribe. The tribe has concurrent jurisdiction. They are 
also separate sovereigns, and a prosecution b}^ the tribe should not 
bar a subsequent Federal prosecution. 

These two sovereigns can go hand-in-hand on that, just as the 
Federal goes hand-in-hand with the States in some of their situations. 

Congressman Meeds. Are you aware of any tribal jurisdiction over 
any of the 10 major crimes, which has been asserted since the passage 
of that act? 

Mr. Taylor. I'm not aware of any cases on it but I am aware of 
the fact that the Hopi, through the law firm of Boyd en and Kennedy 
in Salt Lake City, revised their code and proscribed the crime of 
murder so the Hopi Tribe does have that jurisdiction asserted at 
least in their code. 

Mr. Alexander. I'm not sure if the case has arisen yet, but it is 
being given significant consideration and I think that the factual 
problem that exists needs to be somewhat explained in this context. 
There is a significant and substantial failure by the U.S. attorneys 
generally to prosecute felonies that have arisen on Indian reserva- 
tions. We have heard that all over the country. The National Tribal 
Court Judges Association, to a certain extent, has documented that 
in its series of studies. 

What impact that has had on the Indian reservation is significant 
and substantial. Where someone is able to walk around on the reserva- 
tion, having escaped prosecution for a felon}^ it creates significant 
local law enforcement problems, and so forth. 

Judge Rhodes, who I have mentioned several times, says that 
personally he can point to six persons on his reservation who have 



114 

escaped prosecutions. The reasons for this are complex. The FBI are 
significantly distant from Indian reservations. They are not neces- 
sarily appropriate investigators when they get there. They don't 
necessarily know the local scene or interact well with the local people. 

They are the second law enforcement authorities there. The BIA 
or the tribal police are both the prime law enforcement authorities 
on the reservation. They do not appropriately utilize those local 
resources in law enforcement. 

The lack of major criminal prosecution is a serious problem for 
tribal justice systems and police cooperation. 

I want to point out one other case example. Gila River, the tribe 
south of Phoenix in Arizona, were some of the first tribes, vis-a-vis 
consent order to extend jurisdiction over non-Indians in a functional, 
operational sense. Those tribes were forced against the wall to that 
position. They were losing tribal assets. The lives of the people in 
that tribe were in danger by not exercising that jurisdiction pre- 
viously. 

There are stories of mesquite wood, which is a valuable asset, being 
ripped ofr by people coming into the reservation for commercial and 
personal purposes and just driving away with impunity. 

The stories of hunters coming into that reservation, chasing through 
residential areas and firing guns through people's clotheslines, yards, 
and so on, are what forced that tribe to extend that jurisdiction. 

Since 1972 the Gila River Court has run over 3,000 cases and there 
has not been one single, solitary Indian civil rights appeal against 
jurisdiction over non-Indians in Arizona in those cases; and Peter 
has told a story and he knows it better than I, of a non-Indian lawyer 
representing a non-Indian client in the Quinault court; came out of 
that court system and said that was the best judge and the faire>t 
court system that he has ever been in. That he would rather be in 
that court system with his client than in any of the other surrounding 
county or State court systems. 

And that's what gets us right back to No. 1. The premise is the 
assumption that they will act intelligently, responsibly, and fairly when 
exercising power; and that is what we are talking about. 

Mr. Whartox. I think an additional comment with respert to 
major crimes jurisdiction is relative here. There are 14 enumerated 
major crimes, one of which was most recently added, which is to 
deal with the kidnappings between Indian people that occur wholely 
within the reservation. 

I think one of the things that that points up, is that tribal courts 
do have jurisdiction over those serious crimes which are not enumer- 
ated in those 14 serious crimes in the Major Crimes Act; so in fact, 
tribal courts do exercise jurisdiction over serious crimes. 

The only problem is, of course, that when they do exercise such 
jurisdiction, they are limited to 6 months and $500 fine. 

Congressman Meeds. Just one more question in this area. Is there 
a recommendation that the Major Crimes Act be repealed, insofar as 
it applies to the Federal Government and non-Indian? 

Mr. Taylor. No; I don't think the Indian people would want the 
Major Crimes Act repealed. I do think they would like to have it 
interpreted. 



115 



Mr. Wharton. The thrust of the recommendation 

Commissioner Whitecrow. Excuse me. Don, and Mr. Chairman, 
may I ask a question? 

Chairman Abourezk. Do you have a question that will follow 
up on this or is it a new area? 

Commissioner Whitecrow. Yes, sir. It will follow up on this. 

You don't think — there is no recommendation for repeal of tlx 1 
Major Crimes Act, but what would happen, say with the assimilated 
crimes act in a tribal geographic area? 

Mr. Wharton. Assimilated crimes act is a separate issue involving 
the application of State 

Commissioner Whitecrow. We will cover that later then. 

Mr. Wharton. Yes; we will. 

Chairman Abourezk. I would like to, before you start, Pete, the 
police in the building have said that if we want to come in tomorrow, 
we're going to have to make arrangements now and I think the Com- 
mission had better decide whether or not we want to have a session 
tomorrow. 

My view of it is, that once we get beyond the Federal delivery 
system, we will not have so much discussion or controversy as we've 
had in these other sections and it's going to go a lot quicker; and my 
feeling is we may not need a session tomorrow. 

Besides that, there are two football games on 

[Laughter.] 

And we know where our priorities are, right? So, what's your 
pleasure? What's the pleasure of the Commission. Do you want to 
come in tomorrow or should we wait until Monday? 

Commissioner W^hitecrow. Mr. Chairman, are we talking about 
adjourning this afternoon, now and then coming in tomorrow? 

Chairman Abourezk. No; not adjourning now. Adjourning at 
5 o'clock and coming in tomorrow. 

Commissioner W^hitecrow. I was going to suggest that if we wanted 
to adjourn now, this would be a good time to begin realizing that 
Oklahoma State University is going to win the Big 8 Conference 
today b}' overthrowing and defeating Iowa State; but personally, I 
would like for us to come in, because I see a tremendous amount of 
workload here and I would like to at least spend 2 or 3 hours tomorrow. 

Chairman Abourezk. Louie, what's your pleasure? 

Commissioner Bruce. Yes; I think we should meet tomorrow. 

Chairman Abourezk. Adolph? 

Commissioner Dial. Ten to one tomorrow. 

Senator Metcalf. If the Commission wants to meet tomorrow, 
then I'll be here. 

Chairman Abourezk. Then it is the consensus that we will meet. 
The decision has been that we come in at 10 and adjourn at 1 
tomorrow. That sounds good because the game starts at one. 

Senator Metcalf. Can we go home at 4, so we can see the USC 
game? 

Chairman Abourezk. Today, well, all right. 

Patty, will you notify them that we would like to come in at 10 
and adjourn at 1 tomorrow. It will be the Independence Avenue 
entrance, right down this way. 



116 



Mr. Alexander. What arrangements can be made to make sure 
that the audience people, the people who do not have identification 

can come in. 

Chairman Abourezk. Patty, will you make arrangements that 
one of our staff can be there about a quarter of 10 to identify members 
of the audience. 

And one thin":, we most likely will get to Federal delivery systems 
by tomorrow, so for the benefit of the audience and those people 
interested in that, that will be most likely tomorrow, unless we get 
hung up further on this subject today. 

Commissioner Bruce. Could I ask one question, Mr. Chairman? 

I'm sure you all have a copy of the article concerning the Phoenix 
decision in Arizona. Does that strike that what we're talking about 
here, Arizona has no right to extend the application of its laws to 
an Indian Reservation. The Arizona Supreme Court, in an opinion 
Wednesday, extends the guarantee of sovereignt}^ to Indian reserva- 
tions created by Executive order. 

Chairman Abourezk. Isn't that just a restatement of existing law? 

Mr. Wilkinson. All J can say is, I'm glad to hear that the Arizona 
court has reached that position. I will be anxiously awaiting the results 
from the States of Washington and Utah, which are still forthcoming. 

Chairman Abourezk. All right. It's 2:30 — it's time for a 5-minute 
recess and we'll be back in 5 minutes. 

[Short recess.] 

Chairman Abourezk. The Commission will resume its consideration 
and deliberation. 

For the information of the Commission members, we have a small 
item of business to take up before we continue on this particular 

subject. 

Nearly ever}?- member of the Commission has received a letter from 
Sam DeLoria. I have not seen my copy yet, but I am now reading 
from Jake Whitecrow's copy of it and I'm sure a couple of other 
copies have been received by Commission members. 

I want to read the letter — 
Jake Whitecrow: 

Dear Mr. Whitecrow: I have just finished reading a document sent to me 
from a source outside the Commission which purports to be the final report of 
task force No. 3, Federal Administration and Structure of Indian Affairs. The 
source is usually reliable and I must conclude that this document is an unedited 
version of the leport of the task force of which I, at one time, believed myself 
to be Chairman. 

I have not been privileged to receive from the Commission staff a final report, 
nor have I been consulted in the editing process. This letter is merely to dis- 
associate myself from the above document — representing to me that the sum of my 
own conclusions nor the quality of my work product. It also does not fairly reflect 
the many months of labor of a host of dedicated people, much of it volunteered. It 
is inevitable that there will be casualties in pursuit of a task the magnitude of that 
set by the Congress for the American Policy Review Commission, and it is clear 
from an attempt at reading this report, that Task Force No. 3 was Dunkirk. I 
would like to extend my apologies to all concerned for any failure of diligence, 
executive leadership, or political and fighting skills on my own part, which may 
have contributed to this totally unacceptable final product. 

As a famous American once said, "I accept full responsibility where the blame 
should go to others." I would like to extend to the Commission my sincere best 
wishes for the successful completion of the difficult task before it. 
Respectfully yours, 

Sam DeLoria. 



117 



I am not clear from this letter exactly what Sam wants done. Sam is 
not here to provide the Commission with an explanation of the letter, 
because it's obvious that there are unanswered questions to it. Ob- 
viously, he did not take part in the writing of the report or the editing 
and I don't know why he didn't. I don't know if anybody e&M kn<>\\ - 
why he didn't. 

Congressman Meeds. Well, Mr. Chairman, Winston Churchill was 
given an opportunity to write the problems of Dunkirk. Perhaps Sam 
ought to be given an opportunity to furnish us what he thinks the 
quality of his work would represent and the report. I think we ought to 
extend that opportunity to him to provide us with his critique, or a 
minorit}' report if he wants to be referred to in that way, or ex-chair- 
man's report or something. 

He certainly ought to have an opportunity to have his input there. 

Chairman Abourezk. I don't disagree with that. 

Can I ask who else is on this task force? Ray Goetting? Ray was 
Sam DeLoria — did Sam take part in the writing of the report of your 
task force? 

Mr. Goettixg. Yes; he did. 

Chairman Abourezk. He took part in it? 

I mean on the final outcome of it; was it a situation where he was 
outvoted by the other two members on what should go in the report? 

Mr. Goettixg. Xo; unfortunately we were unable to schedule all of 
us to be at the same place at the same time too often, so it wasn't a 
matter of a vote on everything. We did vote on a couple of occasions 
but I don't recognize or remember any particular specific controversial 
area. I really don't. 

Chairman Abourezk. Adolph? 

Commissioner Dial. Mr. Chairman, it seems to me then, this 
would apply to an}' of us, that an} r one who wishes to make a minority 
report may do so. When a report is written, it's written. That is his- 
tory. It cannot be changed and you recall, at some meeting back in 
the summer, there was a motion to the effect that we would accept 
task force reports as written. All task force reports as they are. 

Chairman Abourezk. That's true. 

Commissioner Dial. And so I would suggest that Mr. DeLoria's 
letter become a part of the record and, if he wishes to present some- 
thing else, he has the opportunity to do so before this work is finished. 

Chairman Abourezk. All right. 

You and Congressman Meeds have about the same idea. Is that 
put in the form of a motion? 

Commissioner Dial. I would put this in a motion. 
Chairman Abourezk. Is there a second? 
Commissioner Whitecrow. I'll second it, sir. 

Commissioner Abourezk. Without objection, the motion is agreed 
to. 

All right, I'll direct the staff, Ernie Stevens, to write a letter to 
Sam DeLoria, telling him that his letter will be appended, unle>< he 
doesn't want it appended to the final report, and as a minority view, 
and if he would like to further detail his minority views, he will be 
given that opportunity. We will have to apprise him of the time 
constraints, when the report will be published and so on, but you 
might want to do it by telephone even, if you feel like it — and then 
follow it up with a letter. 



118 



Commissioner Dial. Mr. Chairman, you understand I was includ- 
ing all task force reports and all people involved in this motion. 
Chairman Abourezk. I understand it now. 
Commissioner Dial. Let that he part of the record. 
Chairman Abourezk. OK. And you will write the letter, Ernie? 
Mr. Stevens. Yes. sir. 

Chairman Abourezk. Here is Jake's letter back. OK. 

Are we finishing with No. 2? Does anyone else have any comments 
or questions on part 2? 

How about part 3 then, moving right along here. 

Mr. Taylor. Mr. Chairman, I think by covering these first two 
paragraphs, we've pretty well explored the problems of jurisdiction. 

I was going to suggest that — well first, I think we've covered the 
jurisdiction thing. I think we see where the problems are. I think we 
see the concerns that are being expressed here. I don't know when 
the Commission will meet again. There's been talk of a December 
meeting and there's also been talk of moving it to the first week in 
January. 

Chairman Abourezk. We will decide next week, Pete. After Ernie 
has put together some optional dates for us and so on. 

Mr. Taylor. Well, my suggestion at this point is that we, as a staff, 
consider — I think that some degree of consensus has come here. 
Perhaps a motion or a discussion should be had, but I think what 
we as a staff need to do, is take these recommendations which I must 
say were clone in haste, to get ready for this meeting. 

There are imperfections here. I don't think any one of us would 
want to stand up and say this is a final document. This is an extremely 
important meeting because it's helping us to shake down ideas and 
wording and all kinds of things like that, so I think we need to come 
back to the next meeting with a more refined treatment of the subject 
and one which attempts to take into consideration some of the concerns 
that have been expressed here. 

I would see them as perhaps alternative considerations. I certainly 
yield to none on the question of tribal sovereignty and tribal juris- 
diction, but I do understand the problems here, and I think also in 
this discussion, particularly when we start talking about actual cases, 
I have the sense that what is coming out of this meeting is open- 
mindedness, a willingness to make further consideration of the 
problems. 

So, saying that — there is one paragraph back on page 58 that's 
jurisdictional that I think we should run through very quickly and 
then these next paragraphs here on page 10 deal with a subject totally 
unrelated to jursidiction and I think we would have to cover those 
quickly. 

Chairman Abourezk. Let's cover those as quickly as we can. We 
are talking about, in effect, a transfer of power away from the area 
and agency superintendents and more toward the tribes; isn't that 
correct? 

Mr. Taylor. No. This section is more directed toward adminis- 
trative practices. 

Chairman Abourezk. But a transfer of power, nevertheless. You're 
talking about who can veto what and how a veto will be handled and 
so on? 

Mr. Taylor. Yes, that's correct. 



119 



Chairman Abourezk. All right. We can deal with those. I don't 
believe they are as controversial as the area that we just covered; in 
fact, probably nothing will be as controversial as jurisdiction. 

We are still on page 10, paragraphs 3, 4, and 5. 

Mr. Taylor. I will just read the first sentence, paragraph 3: 

The authority of the Secretary of the Interior to disapprove a proposed tribal 
government initiative should be severely limited to a definite procedural safeguard. 

The proposal here is relating to purported powers that were trans- 
ferred to the Secretary of the Interior by section 2 of title 25 of the 
United States Code. It's a statute that dates back to either 1832 or 
1834, which designated the Commissioner of Indian Affairs to ad- 
minister Indian affairs. 

Clearly, what was intended by that section is that he should admin- 
ister acts that are passed by Congress. It was not a transfer, a dele- 
gation of congressional authority to regulate all Indian affairs. 

An interpretation such as that is clearly unconstitutional. If there 
was such a delegation, it would invade the separation of powers 
doctrine. But Interior has operated on that premise, really, for 150 
years. 

In connection with that, the Secretary has taken unto himself 
powers to veto tribal ordinances, to pass judgment upon the power 
of a tribe to levy a tax on dogs — even that belongs to members of the 
the tribe. Questions on whether or not the tribe can pass an ordinance 
that would haul away junk cars that are laying around. 

I don't think section 2 was ever intended to give that kind of power, 
and if in fact it did, certainly, the Congress ought to say that that's 
not going to be the power anymore. 

So, this is a recommendation that we limit the approval power of 
the Secretary of Interior to matters that relate to the trust assets. 

The intent of this is not to totally remove the Secretary from a 
process, a governmental process if the tribe so desires. I think the 
tribe should have a right to ask and insist if they want that the 
Secretary review statutes that they are passing so that they can get 
the input and the expertise of the Solicitor's Office or whatever agency 
is there. But essentially, what section 3 is doing is saying that we've 
got to put a limit on the approval power of the Secretary and give 
some definition to it. 

Chairman Abourezk. OK. I have no problems myself. I don't know 
about the rest of the Commissioners. 

Then, let's move on to paragraph 4. 

Mr. Taylor. It relates to the power of the Secretary of the Interior 
in the management or supervision of trust resources or the exercise 
of his approval power, as set forth above in paragraph 3, should be 
subject to tribal review. 

There's really two proposals going here, coming from two different 
task forces, but I think they interrelate. The first proposal, which is 
in the second sentence, is that the Secretary, when he disapproves 
of something the tribe wants to do with its trust resources, would 
have to make written findings of why he was disapproving that, 
explaining the concerns he had about dissipation of trust asset> or 
some such thing. Then supply the tribe with that so that they know 
why he is taking the position he is taking. 



120 

Right now, he doesn't really have to do that. The second provision 
here would be one that would permit tribes, in the case where the 
Secretary said, "No, you know, I'm not going to approve your dealing 
with a trust asset that way," and he serves the tribe with his reason . 
The tribe can sit down and say well, "Now we've taken into consider- 
ation your reasons. We don't think they're valid. We think your fears 
are unfounded, so we are going to overrule your disapproval." 

The trust obligation should continue. The tribes are afraid, very 
rightfully so, of losing the continued trust obligation if they override 
that secretarial approval. But the proposal here would say that the 
liability of the United States for the trust would be diminished or 
would be exonerated. The United States to a limited extent, would be 
exonerated from liability to the extent it involves suits by reason of 
the tribe overruling the Secretary's disapproval. His trust obligation 
and liability then would be to help the tribe in the administration or 
implementation of whatever decision it was they made, and that's 
basically the proposal that's laid out here. 

Mr. Whitecrow. Mr. Chairman, I would like to speak to that, 
if I may. 

What we're talking about is self-sufficiency of a tribal government 
and the things that I have heard Indian people say is, let us function, 
give us the authority to operate. Let us learn by doing that; sure, we're 
going to be making mistakes, but let us be responsible for our own 
mistakes. I see this approach as allowing the tribe to do that. 

Mr. Taylor. I think that's correct, Mr. Whitecrow. I am sometimes 
concerned about this. This proposal would make it entirely optional 
with the tribe. They are very concerned about their trust resources 
and the role of the Secretary in helping to protect those and they 
don't want to just lose that, but I think it does reach to this thing of 
allowing tribes to have much greater input in the management of their 
resources and limiting the power of the Secretary in the management. 

I could go further, if 

Congressman Meeds, you look a little puzzled and I don't know 
whether I should stay on this. 

Congressman Meeds. I am in general agreement with this. It will 
change a lot of things and I think we have to recognize that. If the 
Commission goes on the record in adopting a lot of the other recom- 
mendations, it would be incredibly naive to continue the authority 
which the Commissioner is now exercising with an effective veto power 
over most any tribal action that is taken. 

That, of course, is premised on the basis of the trust relationship, 
not only for resources, but for the persons and actions of Indians. And, 
I think what you are doing is eliminating that portion of the relation- 
ship which deals with the actions of Indians. It's something we should 
have done a long time ago. 

Mr. Taylor. We're trying to do that very cautiously. 

Congressman Meeds. I understand and I understand what the 
effect will be. I don't know that when we get all finished that I'll 
be in favor of limiting the trust responsibility. I don't know that some 
of the other protections which I'm in favor of will still be around. But, 
3^ou know, I have no basic disagreement with that philosophy. 

Mr. Taylor. I would like to just 

Congressman Meeds. As a politician, I recognize it as just a pawn. 



121 



Mr. Taylor. Maybe I should keep talking. 

Congressman Meeds. And I've never been one to use a pawn. 

Mr. Taylor. I certainly don't view it in thai context, but I think 
it is important to say that this is not a removal of the trusl responsi- 
bility. It simply is allowing, lot's say areas of negotiation between 
tribes and the Secretary. 

Congressman Meeds. It's a removal of the authority of the Sec- 
retary or the Commissioner or other agencies to substitute his judge- 
ment for that of the Indians. 

Mr. Taylor. Without termination of the trust. Now, that'- a very 
critical point. I mean, termination was sold in the name of freedom 
from paternalism and from my own standpoint 

Congressman Meeds. Perhaps it's a removal of that paternalism 
part. 

Mr. Taylor. Fine. I think we understand each other. 

All right. Paragraph No. 5 deals with problems the tribes have in 
relationship to Federal statutes of two different natures. One is 
Federal statutes that provide for the deliver of domestic assistance 
programs, programs that are available to States, counties and mu- 
nicipalities and that all too frequently, tribal governments are ex- 
cluded from participation in, because of the way a statute is phrased. 

There was a study done by the American Indian Law Center under 
contract from ONAP called the FIDAP study. They identified many 
of these statutes. There was no firm proposal for reform that came in. 
Two of the task forces recommended an approach that would declare 
that for purposes of Federal domestic assistance programs, tribes 
shall be considered on the same basis as States as being eligible. So, 
that's the first group of Federal statutes. 

I think what we're asking here is just that again it's something 
that we need to do more work on the drawing board and we find — I 
think the basic concept is good. I might say the FIDAP study that 
was done under the ONAP contract did not like the idea of a simple 
declaration that tribes would be considered the same as States, so 
there is a division of opinion on how to resolve the problem. There is 
unanimity in the opinion that there is a problem. 

Senator Metcalf. Mr. Chairman, may I make a comment? 

A few years ago, Senator Mansfield and I went to a hearing, I was 
a Member of the House of Representatives at the time, and we and 
the Indians testified on behalf of a provision permitting Indian tribes 
to qualify under all the criteria of a bill for — I've forgotten exactly 
what the bill was. 

But, that was the first time that we put Indians under one of the 
Federal grant programs. From time to time, we've added the Indians 
to other measures, as eligible entities. I don't know when we failed 
to do so, but I certainly wouldn't like a general proposition of saying 
that Indian tribes shall be considered as beneficiaries of all these 
grant programs. 

Sometimes we only make the programs directed to say school 
districts or sometimes to counties and sometimes to States. I agree 
with you that you shouldn't filter the tribal government's grant 
through the State's grant; but I think, again, we should go back to 
the proposition that this matter should be considered on an act-bv- 
.act and legislation-by-legislation basis. 



122 



The OEO program has done a great deal more for the Indians than 
almost any other program that I can imagine, because the Indian 
tribes are especially and peculiarly situated to benefit from self- 
help building programs and things of that sort. 

But, a general piece of legislation I think would be wrong and we 
should consider it on an act-by-act basis. I have always found that 
Congress is responsive to including tribal governments whenever 
the question has been raised and a good case has been made. 

Mr. Taylor. We have, in addition, input from the American 
Indian Law Center that conducted the study. It took what I consider 
a conservative approach to correct the action. 

I appreciate the concern }^ou are expressing and so we now have it 
from you who sat in the first act which was, I think, an Area Develop- 
ment Act, wasn't it? 

Senator Metcalf. Yes; it was an area redevelopment program and 
Senator Douglas was holding the hearing and one of the Indian law 
firms asked us to go over and make a point that unemployment and 
the failure of Indians to attain certain levels of income and all those 
things were worse on the Indian reservations than in any other 
areas, but that the criteria of eligibility should apply. 

Mr. Taylor. Perhaps we should accept this thing here more as 
an identification of a problem that's awaiting some further recom- 
mendations. 

Commissioner Whitecrow. Mr. Chairman, I would like to just 
state this. 

Senator Metcalf, from the standpoint of the OEO Act of 1964, I'm 
in complete concurrence with you in the fact that it did more for 
American Indians than any other single piece of legislation that 
we've had come down. 

However, it did not come down uniformly, down to the Indian 
people throughout the Nation. It was only in 1973 available to 20 
percent of the Indian population in the State of Oklahoma and it 
was not because of the legislation as it was written. It was because 
of the rules and regulations that were interpreted by the adminis- 
trative section. 

So, I think if we should relinquish anything insofar as this No. 5 is 
concerned, we should certainly take into account that rules and 
regulations should be provided so that all Indians, Indian tribes, et 
cetera, as we are referring to here, would be eligible in any single 
piece of legislation that might come out. 

Senator Metcalf. I am in complete concurrence and I merely 
wanted to say that it seems to me that sometimes Public Laws 874 
and 815 go directly to school districts for example; and sometimes to 
Indian school districts, we bypass the States. It would seem to me 
that on a case-b}^-case and legislation-by-legislation basis, when someone 
would raise this question, I never had anybody oppose inclusion of 
Indian tribes, but you had to make a good case for it if you wanted 
it included. 

Mr. Taylor. It's possible, Senator, that perhaps what we should be 
recommending — I know that the examination of all of these statutes 
is a tremendous undertaking. The Indian lawyers have worked on the 
problem for at least 1 year. They had access to the Library of Con- 



123 



gress, computer tapes that allegedly tell you what programs you can 
get into. 

Perhaps what we would wind up with, as a recommendation, would 
be a special task force that would be funded to do something about 
the problem, or perhaps additional contracting through ONAP for 
the followup work. 

But, it is a very significant problem. It's not the kind you can resolve 
with a limited staff. But I think your caution is well taken. The o1 her 
group of statutes that we refer to here is that Federal regulatory laws 
must be revised to give due account to tribes as the primary instru- 
ment of government within the boundaries of reservations. 

Chairman Abourezk. Give us an example of what }^ou mean by 
that. 

Mr. Taylor. Environmental protection laws that are passed that 
authorize States to assume certain enforcement responsibilities, 
sometimes even adopting their own alternative plans to a Federal 
plan. Coal Mine Health and Safety Act did that. 

Before I was in Indian law, I was in coal mine health and safety 
and I am reasonably well acquainted with that particular piece of 
legislation. 

There are jurisdictional problems going here. We did identify the 
1973 or 1975 Land Use Planning Act as an example of what we 
felt on our Task Force 9 as being a very enlightened legislative 
approach to this problem. 

It's one that does take into account tribes as units of government, 
but these are the kinds of statutes that we are referring to. Occu- 
pational Health and Safety Act 

Chairman Abourezk. Unless there is comment on that, why don't 
you move to that other part of this chapter that you want to discuss. 

Mr. Taylor. Right. 

I would like to refer to page 58D. I guess there are realty two parts 
of it to address here. 

Chairman Abourezk. Did }^ou say B? 
Mr. Taylor. "D" as in dog. 

Chairman Abourezk. Compliance with the Commission's mandate. 
This directly relates to data concerning Indian needs and recom- 
mendations to strengthen tribal government, is that it? 

Mr. Taylor. No; it's page 58D, Senator, in chapter 6, the juris- 
dictional things that we've been talking about. 

Chairman Abourezk. OK. 

Mr. Taylor. Our recommendations on jurisdiction actually start at 
page 58 with our staff statement and what this deals with are all of the 
conceptual issues that we have been discussing here now for — well, 
roughly a whole day, and which I have suggested that we try to firm up 
our positions on this so that perhaps we could have a more definite 
discussion. 

But the two paragraphs that appear on page 58D, the two items that 
we haven't dealt with yet. This paragraph No. 6 identifies certain 
specific Federal laws wdiich we feel should be amended to achieve the 
results that we're talking about. 

Chairman Abourezk. You're talking here about details, which is all 
right. We have already covered these concepts in a conceptual manner. 



124 



Mr. Taylor. We have but I think I can run through it in about 2 

minutes. 

( 'h airman Abourezk. That's fine. I'm not trying to stop you, I'm 
just living that I want to clarify that I think we have already covered 
these concepts. Everyone has expressed their views on the principle of 
1 ribal sovereignty and it seems to me that these are mere implementing 
details, right? 

You can go ahead and cover them. 

Mr. Taylor. I think they run slightly beyond. 

( ongressman Meeds. If the chairman would yield to me, this state- 
ment about details reminds me of a story of a man and a woman who 
had been married for 40 years and got along so well that finally some- 
body asked the fellow how come they got along so well. He said, "It's 
very simple. I make all the major decisions and she makes all of the 
minor decisions. I decide for instance whether we're going to recognize 
Red China, what we're going to do about the Middle East and she 
decides where we're going to live, whether we're going to have a new 
ear. and those mundane things." 

We are now dealing with those mundane things. 

( h airman Abourezk. I could tell a story too, but I'm not going to 
do it. 

Mr. Taylor. Pardon me just a second. 

I think Charlie has something that should be said and I concur with 
him on this. 

Mr. Wilkixsox. I was speaking with the director, Ernie Stevens, 
over lunch and I felt as staff, that we perhaps don't have complete 
direction on where we should go from here. 

1 know we've had an extremely fine discussion. That is, I think, very 
fruitful. There are some points Congressman Meeds has raised that 
clearly will result in the shifting of language and very important shifts 
in language. But the general question as to whether the Commission 
wishes the staff to proceed now in line with the staff recommendations, 
with the suggestions Congressman Meeds has made and a couple of 
other suggestions that I think the chairman and others have made, 
is still at least not to me entirely clear. I think we could use some 
guidance from the Commission. 

( liairman Abourezk. What's the question? 

Mr. Wilkixsox. The question is: Do you wish us to proceed in 
redrafting and drafting further recommendations and findings in 
ac< ordance with the principles set forth here? 

Chairman Abourezk. Well, I think so. I think— the point is that 
unless you run into — I guess we ought to clarify this right now. 
Unless you run into very stiff opposition from a majority of the 
Commission and we're not voting and everybody understands that 
right now, you ought to go ahead and proceed with the concepts as 
outlined here and if you feel like some of the members of the Commis- 
sion have objections to what you say, write an alternative platform 
for him or he'll write his own or she will write her own or whatever. 
And, provide it as an alternative when we do come to the time for 
voting. 

And, if you feel like that you are in doubt as to anyone of these 
principles, you might just go ahead and ask us what you ought to 
,'do with it and we'll just tell you to either go ahead or stop it or what- 



125 

ever, but unless something is said specifically that you shouldn't 
even put it in, I think you ought to go ahead and put it in because 
we're not yet to a point yet where it is cast in concrete. We have 
plenty of time to eliminate or add or whatever. 

Is that how the Commission feels? 

Lloyd? 

Congressman Meeds. Mr. Chairman, I find myself in disagreemenl 
with a number of these proposals. I don't want to inhibit the whole 
Commission or anything like that, but what becomes increasingly 
apparent to me is that I'm going to have to write minority vic\v> in a 
number of areas. I will, by vote, indicate when the time cook s with 
which areas I disagree. 

Chairman Abourezk. Well, from the discussions we have had, 
you might even maintain the concept that we have discussed and 
also put in the views expressed by Congressman Meeds, for example, 
and any dissenting views, because you are working with it. It would 
probably help him out a great deal if you would put in his views and 
put it in as a draft if you can. If you can't, he'll put them in himself. 

Mr. Taylor. I feel that as we develop this thing — I'm sorry, 
Senator. 

Senator Metcalf. Go ahead. 

Mr. Taylor. That is, we develop this paper. After all, the House 
Office Building is only across the street from our office and I feel that 
we have an obligation to confer with you, Mr. Chairman and with 
Senator Metcalf and Mr. Meeds and all of the other Commissioners 
to send out our drafts as we are developing these. 

I am very concerned about the concerns you have expressed, Mr. 
Meeds, and they do need to be accounted for in this paper. I would 
expect, I frankly would expect dissenting views. 

We're taking a strong, forceful position, and I think people can be 
strong behind Indian rights but not quite as far as what some of the 
things we're saying. 

Chairman Abourezk. Well, Pete, we would expect you to advocate 
them very strongly. If you didn't I think we ought to replace 3 T ou. It's 
tli at simple. 

Mr. Taylor. That's the way I feel too. 

Chairman Abourezk. OK. 

Mr. Taylor. But what I'm saying is I know the whole staff wants 
to work along with the entire Commission as this paper develops. 
It's our responsibility to you. 

Chairman Abourezk. I think so far the relationship has been 
perfect. You speak forcefully for 3^our position and we question you 
to make you refine it and sharpen it and think about it more, and we 
in the process learn a great deal, I think, about it ourselves. 

And it's working great so far and I hope it doesn't change in fact. 

Senator Metcalf? 

Senator Metcalf. I am in complete accord with you, Mr. Chairman. 
I have listened carefully to this discussion. I find that right now I'm 
in disagreement with some of the propositions that have been raised. 

I feel that Congressman Meeds has asked some very searching 
questions. I think that the staff should go ahead with the report, and 
if I don't agree with the final report I certainly would join Mr. 
Meeds and write my own dissenting opinion. I think that all of us 
feel that way. 

82-749— 77— vol. 4 9 



126 



The Commission report should be strong. I feel that you've come 
up with vivid and viable statements. I am in complete accord with 
the chairman that you go ahead. It may be that you can modify somjj 
of the things in the light of the discussion, but if you want to submit 
a report, it's certainly all right with me, and by that time J will be 
prepared to write concurrent views or dissenting views. Or, just keen 
still. 

Mr. Taylor. I think that pretty well covers the jurisdiction. On 
reexamination of that page, Mr. Chairman, I think we should move 
back 

Congressman Meeds. I just take this opportunity to point out to 
the Commission the language of No. 7. I wonder if the Commission 
has noticed what No. 7 does. 

Mr. Taylor. I did not want to stretch the line too far. 

Congressman Meeds. But it does in effect — in combination with 
some other recommendations with regard to what sovereignty is or 
what sovereignty should be — extend Indian jurisdiction to tribal 
jurisdiction of the Sioux, to a good share of Nebraska, South and 
North Dakota for all purposes. 

Is that an incorrect statement? 

Mr. Taylor. No, I don't agree with that. 

Congressman Meeds. No. 7 says exterior boundaries of the original 
reservation remain a part of the reservation and Indian country 
unless an act of Congress has exclusively stated that a reservation 
has been diminished or disestablished. 

I know of no such law disestablishing the Sioux Reservation of 
1868. Was it disestablished by a specific act of Congress? 

Chairman Abourezk. What law specifically disestablished the 1868 
treaty reservation? 

Mr. Taylor. I'm not sure. I'm waiting for expert counsel up here. 

Congressman Meeds. Wasn't that action taken by an act of the 
Appropriations Committee, which simply took the Black Hills? The 
1868 Great Sioux Reservation was disestablished first by the 1877 act 
ratifying that agreement, with the Sioux. Then by later act in 1889, 
I beiieve Congress established the current Sioux reservation in South 
Dakota. 

Chairman Abourezk. And then the court cases have been trying to 
determine which further diminishments there were, is that correct? 
Mr. Wharton. That's correct. 

Chairman Abourezk. Has anybody on the staff put together a 
listing or a table of the reservations that there is still a controversey 
over throughout the country? 

Mr. Taylor. Mr. Chairman our Task Force 9 identified at least 108 
allotment and opening statutes. This paragraph is specifically designed 
to legislatively overturn the test that was employed in the DeCoteau 
case on the Sisseton Reservation. 

It is not intended to restore all of the lands west of the Mississippi to 
the tribes as per the act of 1802. 

Chairman Abourezk. Well, if it would be helpful to the Commission 
if we knew which reservations would be affected by section 7. 

Congressman Meeds. Mr. Chairman, I would agree with you. I 
think in connection with No. 7, the staff should be directed to provide 
us with a map of the United States of the areas which would be 
affected by this. I think it would scare the Commission, frankly. 



127 



Chairman Abourezk. All right. 

Congressman Meeds. And maybe even members of the task force 
ought to hear it. 

Chairman Abourezk. When will the map be done; that's w hen we 
need to know. 

Mr. Taylor. I'm not sure the Bureau of Indian Affairs could supply 
us with this. You know, we can list the statutes. 

I would like to speak a little bit more to this. There is a very definite 
problem here and I think the DeCoteau case, particular!}', reflects that 
problem. That was an adoption case or a welfare — the State welfare 
department taking away a child from an Indian woman. 

This woman was a Sisseton, a member of the tribe. She lived within 
the original reservation boundaries, but it's a checkerboard reserva- 
tion. A part of the time she lived on trust allotted land, part of the time 
she lived on fee patent land, and the State welfare authorities came in 
and asserted jurisdiction to take her child away from her. The whole 
thing turned on the question of whether that reservation survived 
allotment and opening. If it did, if the external boundaries of the 
reservation were still intact, then any proceedings involving this 
woman and her child would have to have taken place in the tribal 
court. 

This decision, the DeCoteau case, said the external boundaries 
had been wiped away. The court left the Sisseton with essentially a 
checkerboard reservation. What the}' have done is restored to the 
jurisdictional field the problem that Congress was trying to address 
in 1948 when Congress defined Indian country, title 18, section 1151, 
where they said Indian country was all land within the external 
boundaries of a reservation. 

It was to get away from the platte book jurisdiction. And consider- 
ing the fact that there's 108 statutes out, the potential for jurisdic- 
tional disputes is just monumental. The Indian tribes will be facing a 
tremendous financial drain trying to litigate these things. 

Y\ Tiat we're trying to achieve here is to freeze things in status quo 
and then let Congress look at these on a reservation-by-reservation 
basis. But in the meantime, let's close the doors to the floodgate of 
potential litigation. In fact, I would take this paragraph one step 
further and say let's restore the external boundaries of Sisseton. But 
that's not in this paragraph and we don't have to debate that today. 

Mr. Alexander. To take it a step further, what this is talking 
about is in the DeCoteau case, the court was faced with ambiguous 
congressional language. All we're saying is adopting the rule of con- 
struction that has existed but in fact were not applied, we have to act 
specifically, when it wishes to diminish an Indian reservation. 

This should be read in context with proposals made in other sections 
of the report about setting up Federal mechanisms on a congressional 
basis. It's what we will recommend to facilitate, reservation by 
reservation, to stop the floodgate of litigation so people can sit down 
and work out their problems together. 

Chairman Abourezk. I'm going to ask you to go up to Sisseton 
and explain that to those folks up there. I was up there a couple of 
years ago or something like that for a meeting on Indian jurisdiction. 
That was before the decision came down abolishing the boundaries of 
the reservation, and there was a fellow, an old non-Indian fellow 
got up and asked me from the audience microphone what was it 



128 



that gave the Indians the right to Indian land and I started to explain 
that perhaps we ought to go baek as far as the 1868 treaty to establish 
the rights to the land and he interrupted and said, "Well, let's go back 
further. Let's send them all back where they came from." And when 
I asked him where that ought to be, he said, " Across the Bering 
Straits," and he said that besides that, they are all on welfare, liny 
are all on unemployment and, "We're supporting everyone of thorn." 

And about that — this is my time for the story right now — about 
that time there were, I suppose, 400 or 500 whites in the audience and 
about 20 Indians sitting all by themselves up in the bleachers in the 
auditorium. The tribe had boycotted the meeting because they didn't 
want me to hold it in the first place, but there were these 20 outcast 
Indians who were not recognized by the tribe nor the white com- 
munity, and a young Indian woman, about 25 years old jumped out 
of the bleachers and ran down to the microphone and pointed at this 
fellow who had gone back to his chair and said, "Do you want to 
know why we're on welfare? I'll tell you why we're on welfare. You 
white guys are screwing us Indian women and we're having your 
kids and you aren't supporting them, and that's why we're on welfare." 

And she said, "I can name eight or nine of you right in the room." 
[Laughter.] 

And, you would have laughed to see how many guys were diving 
under their chairs because their wives were with them, so 1 welcome 
you to go up to Sisseton and explain. 

Congressman Meeds. The implementation of these recommenda- 
tions would effectively abrogate Public Law 280 also, right? 

Mr. Alexander. There are specific recommendations in this chapter 
on Public Law 280 and what is recommended from the staff — 
basically, what task force four recommended in their remarks, which 
is approximately 10 general principles upon which a retrocession 
statute should be drafted. 

It follows in large part the principles that are contained in S. 2010. 
There are differences with respect that have been identified through 
review of existing retrocession situations, particularly in Nevada, that 
there is startup help required even to draft the plan for retrocession. 
S. 2010 provides for resources where a plan has been rejected. In 
addition, it provides for some restrictions on Secretarial discretion, 
mostly procedural in terms of specific fingings upon an application, a 
review process and so forth. 

Chairman Abourezk. Your recommendations are in this chapter on 
the retrocession? 

Mr. Alexander. Yes, sir; the}' are. 

Chairman Abourezk. Am I clear in understanding you, that the}' 
run along the lines of S. 2010, with some minor 

Mr. Alexander. Yes. The principles incorporated in 2010 with some 
modifications. 

Chairman Abourezk. Well, OK. 

We're going to have the map and you will leave the Senator where he 
can look at the map. 

Mr. Alexander. With respect to the map, I would suggest that the 
existing map put out by the Bureau of Indian Affairs, and we will check 
this, basically, the one that has the yellow sections for federally 
recognized tribes. 



129 



Chairman Abourezk. Ernie is going to draft a now map for us SO 
he'll take care of that. 
Mr. Alexander. Fine. 

Mr. Wharton. I did want to respond specifically to what you asked 
Congressman Meeds. 

These principles as laid out here, do not retrocede jurisdiction, be- 
cause Public Law 280 was passed pursuant to the plenary power of 
Congress and was a specific delegation of Federal jurisdiction to the 
States with some exceptions which they specifically delineated. 

So these principles, although adopted and recognized would ro! in 
and of themselves retrocede 280 jurisdictions. 

Congressman Meeds. What then is the report of — or purport of 
subsection D. 

Mr. Wharton. Six D, is that what you are asking? 

Congressman Meeds. Six D, as in dog. 

Mr. Wharton. Six D talks about retroceding 280 but that would 
provide for legislation to do that. 

Congressman Meeds. Yes, but if we were to accept this recom- 
mendation, it would be the recommendation or retrocession as it 
might later occur in more detail. This is a broad general principle 
statement with regard to retrocession, but unfortunately I did not 
hear it correctly interpreted. 

Mr. Alexander. For your information the specific recommenda- 
tions are on page 34 of Chapter 6. 

Mr. Taylor. It would include other types of statutes too, Con- 
gressman Meeds. 

Congressman Meeds. Yes. 

Mr. Taylor. In line with the discussion we previously had. I 
think the Public Law 280 — first of all, I think the recommendations 
in here are consistent with the recommendations that are being made 
on Public Law 280 and the S. 2010 bill. 

Congressman Meeds. As I understand it, we will have a map 
which will show us the original boundaries which have not been 
explicitly stated by legislation to be diminished or disestablished. 

Would it be possible to construct that map in such a way as to 
have an overlay which will show the boundaries of reservations which 
may be diminished or disestablished or parts thereof, but not by 
explicit legislative action of the Congress? 

We're talking about Tacoma again here now. I hate to get specific, 
but I read this. The city of Tacoma is within the original boundaries 
of the Puyallup Keservation. That reservation has been disestablished 
by Executive order, but not by explicit action of the Congress. 

Mr. Taylor. I would question the authority of the President to 
disestablish a reservation. I didn't realize this had happened. I do 
see the Tacoma thing as a very special type of problem and I would 
hate to have our conceptions of tribal government and wmere w r e are 
headed with this framed in the context of that tribe. 

Congressman Meeds. That's why I want the map. 

Mr. Taylor. I understand that. 

Congressman Meeds. I w T ould like to see those areas which have 
been disestablished but not by a specific act of Congress as this 
requires. 

Mr. Taylor. Frankly, it's a big thing you're asking for here and 
I'm not sure that we can do what you're asking for. 



130 



Congressman Meeds. I don't think we ought to be making any 
kind of recommendations on this Commission where we don't know 
what we're doing, Peter. 

You know it's great to talk in theoretical terms, if we recommend 
something we should try and implement it. We don't want to come 
along and find that we're dealing with something that by no stretch 
of the imagination are we going to be able to implement. 

We will just be preparing another one of those reports that's going 
to be stored on the shelf and I think we all vowed when we started 
this business that we were serious about what we are doing. 

Mr. Stevens. Mr. Chairman and Congressman Meeds, I need to 
talk with the staff about the mechanics of constructing a map. I need 
to discuss it with them. 

Chairman Abourezk. Ernie, let me ask you this: Does the BIA 
have somebody up there who makes maps? 

Mr. Stevens. I suppose. 

We can construct a map. The Bureau has a map. 
Chairman Abourezk. What about the Library of Congress? 
Mr. Stevens. That's possible. 

Chairman Abourezk. All right. Then do it this way. Make a map 
of the United States, State by State if necessary. In other words, you 
don't need all 50 States because it doesn't apply to all 50 States, but 
first of all find out what the law is, find out what is considered existing 
reservation boundaries, find out what the reservation boundaries 

Mr. Taylor. Mr. Chairman, could we 

Chairman Abourezk. Could I finish? 

Find out what the reservations are, if section 7 should become law 
and make that as an overlay. Obviously that would be a bigger area. 

So we can lay down a piece of plastic over a piece of paper and see 
what it's all going to be like. In effect, you might want to do it just on a 
State-by-State basis. 

Mr. Wilkinson. If I can make one point very briefly. This is an 
important issue. There is strong consensus in Indian country that in 
areas that were disestablished, that are often now largely non-Indian, 
tribes should retain jurisdiction to the original boundaries. 

That's an issue that is presented here. This is an attempt to overrule 
the DeCoteau case. It is presented in that context. 

This recommendation is to change existing law. Please distinguish 
this from the situation where reservation boundaries are clearly 
established and there is some checkerboarded land inside it. 

In other words, you have a reservation that is mostly Indian with 
some non-Indian land inside it. The law now is clear that that is 
Indian country and that the tribe can legislate within that area. 
We're not seeking reform there. 

As we talked about earlier, concerning where these checkerboard 
areas, if the tribes are maintaining law and order within reservation 
boundaries where it is predominantly Indian-owned land, then the 
tribe needs to maintain that. That's not a law reform change. 

Congressman Meeds. Charlie, you keep saying it's clear. It isn't 
clear. For instance, in the Agua Caliente area with regard to the 
question of zoning, it is not clear with regard to taxation. It is not 
clear with regard to zoning, even in the State of Washington where 
you probably have the strongest case on zoning. So, it isn't clear 



131 



what jurisdiction tribes have over non-Indians on fee patent land, 
even in presently established reservation boundaries. 

There are conflicting cases on these things. 

Mr. Wilkinson. All right. 

What I'm saying is clear is that the courts have treated the situa- 
tion differently. It is Indian country. The Supreme Court of the 
United States has indicated that section 1151 will cover civil matters. 
What I'm saying is that section 7 deals with the question of reestab- 
lishing old reservation boundaries. 

Now, all I'm saying again, and I should never use the word clear, 
because we probably know nothing is clear, but what I am saying is 
that there is a clear distinction between that and section 7, which 
would extend reservation boundaries into predominantly non-Indian- 
owned land for jurisdictional purposes, not ownership, so the tribe 
would have power to legislate out there. 

That's No. 7 here. It is a very different situation where the tribe's 
interest is extremely strong in terms of law and order in regulating on 
checkerboarded areas within established reservation boundaries. 

Commissioner Dial. Would the Congressman yield? 

Congressman Meeds. I don't have the floor. Go ahead. 

Commissioner Dial. In this work of cartography here, are you 
speaking of State reservations also, or all reservations or what are 
you speaking of; only those with the Bureau or what are you saying? 

Mr. Wilkinson. I think at the moment, we are talking about 
Federal reservations. 

Commissioner Dial. All right. You are talking about Federal 
reservations? 

Mr. Wilkinson. Yes. 

Commissioner Dial. Wouldn't it be well for some map work to be 
made also for showing State reservations or, you know, something 
that takes care of the people in Maine and so forth? 

Mr. Wilkinson. Well, I think you are absolutely correct. It's 
saying that there are nonfederally recognized tribes, terminated tribes 
to which these principles ma} r also apply. 

Commissioner Dial. But, if you're going to show the reservations, 
why not show all of them: 

Just show them in a different color. 

Mr. Taylor. Commissioner, I think in order — 1 minute, maybe 
make a different map. Ernie probably has some funds there where he 
coidd hire some good work done in this area. 

Mr. Alexander. Commissioner Dial, in the existing BIA map 
which has reservations identified which you may be familiar with 

Commissioner Dial. I'm familiar with that map. It's not a very 
good map. 

Mr. Alexander. But the State reservations that do exist are on 
that, 

Commissioner Dial. Louie said he had it made. 
Mr. Alexander. You had it made, OK. 

Mr. Taylor. Commissioner, it seems to me that in order to develop 
this map, as for here, No. 1 it relates to tribes that are exercising law 
and order or governmental powers and I may be wrong here, but I 
don't think State recognized reservations are doing that. I certainly 
open myself up to be corrected. 



132 



Commissioner Dial. That's not the point. The point is that while 
you are dealing with the map I am only suggesting that you extend 
that, as you see. 

Mr. Taylor. The next point I wanted to get to is what is being 
asked for here, I believe, are land distribution patterns within these 
reservations. Now, I know of only one source to obtain that and 
that's from the Bureau of Indian Affairs. 

If BIA can supply us with figures, yes, we can draw the map but 
BIA does not have these land figures. 

Congressman Meeds. I'm not asking for a land distribution System 
within the original boundary. All I'm asking for is the original bound- 
aries which have not been changed by explicit congressional action. 

Mr. Taylor. Then my answer to drawing the map is yes. We 
would be very happy to do that. 

Chairman Abourezk. I just want to settle this — wait, wait, wait, 
Pete. I've got it all settled. Ernie is going to do the map. It is not your 
responsibility. 

Commissioner Whitecrow. Will this map reflect all treaty bound- 
aries of all tribes or geographic areas of all tribe- ? 

Chairman Abourezk. Well, it should reflect whether treaty or not, 
anything that has been de facto diminished, when it should not have 
been — if it were not — in other words, there are some reservations that 
just by erosion have been diminished. Just by people coming in and 
settling and there's been no specific statute diminishing that reserva- 
tion; and if there has been a specific statute, it will not show it, if 
there has not been, it's supposed to show it where it's been diminished 
and when it was not supposed to have been under the statutes. 

Commissioner Dial. May I add that it shows erosion? 

Chairman Abourezk. That's what we're doing. We're showing 
erosion. That's the onh' thing that it will show. 

Commissioner Whitecrow. The ma]) will actually show the original 
area and the overlay will show what's taken place. 

Commissioner Dial. I'd like to see a series of maps — I know they 
don't exist, but that show everything. What happened to the reserva- 
tion system. Maybe you don't have time but maybe you could begin 
on it. 

Chairman Abourezk. If we have time maybe Ernie could do that 
but I think the other one is top priority. 

OK. An3 T thing else in this section we ought to talk about before 
we go to Federal delivery? 

Senator Metcalf. Mr. Chairman, it would be interesting to have 
a specific example to show the expansion of the Tongue River Reser- 
vation of the Northern Cheyenne, where there was a larger reservation, 
or maybe Indian country as Congressman Meeds suggested, and how 
some of that reservation is not occupied by Indians at all, but the 
exterior boundaries were taken away and there was a subsequent 
congressional action giving the reservation additional land. 

Could we have a special map showing what the Tongue River 
Reservation originally was, what it became after they sent the 
Cheyennes down to Oklahoma when the President took away some 
of their reservation? 

I think it would be a good example of all the problems that we are 
confronted with in these various matters that are under consideration 
here. 

Chairman Abourezk. He's indicated he will do that. 



133 



OK. Is that it? Last chance. Onto Federal Administration. Federal 
Delivery System, chapter 7, Chuck Peone. Erine Stevens. I want to 
thank you all very much. I know you are going to come back on other 
sections, but we appreciate your help on this, for the last two. 

We'll take a 5-minute recess while everybody is rearranging 
themselves. 

[Short recess.] 

Chairman Abourezk. In operating the platoon system, we find that 
the taxi squad is not quite ready here and so to give them a chance to 
prepare themselves to give everybod} r a chance up here, let the Com- 
mission people shift mental gears, we're going to recess in just a minute 
until tomorrow morning at 10 o'clock. 

Before we do, I have some announcements to make. There was a 
ring left on the conference table inside there. It's a lady's ring and I 
have it and if someone has lost it and if the}^ would like to identity it 
I'D be happy to give it to them. 

Mr. Dial. Mr. Chairman I want to make this statement before you 
adjourn. 

Chairman Abourezk. Go right ahead. 

Mr. Dial. I believe it's necessary on this map business; Ernie, no 
one can come up with a good map before this report is due; not the 
kind that I was speaking of and Senator Metcalf was speaking of and 
many others were speaking of. Perhaps it would be in order that we 
recommend that such a study be made and this work take place, if 
it be a year from now, you know, we're talking about a project worth 
a couple of hundred thousand dollars and this is the way I see it, 
because we can't possibly have a good one, Ernie, by the time our 
work is finished, because if you have one showing the reservation 
system as it is today, as it was say in 1934, 1900, and 1850 and so 
forth and with claims overlapping it involves much needed research. 

Chairman Abourezk. That may be the case, Adolph, it may very 
well be the case. 

We'll have to get a reading on it when you guys start looking for 
this thing. Looking for it, for how to draw the map and so forth. 

Mr. Stevens. By the next meeting, we can have the map you've 
requested. When I was with the Bureau of Indian Affairs one of the 
departments I was in charge of did mapping, so I think I have some 
grasp of what can or can't be done. Rather than discuss it further 
why don't we do what we can by the next meeting. 

Mr. Dial. I would say you are like President Truman when he 
rated the eight best Presidents of the United States and said, "Where 
do you stand, Harry?" He said, "Well, I like to say, when my time 
runs out, here's one who did his damndest." 

So, you go out and do your damndest, but you won't come up with 
what we really need but you can come up with something, Ernie. 

Chairman Abourezk. OK. Anything else before we recess? If not, 
we will recess until 10 o'clock tomorrow morning. 

Oh, yes, Wait one — for one other thing. 

Max says, leave your papers in a very neat pile and he assures me 
that no one will touch them. The door on Independence Avenue will 
be open; the door will be open to nonstaff people at 9 :15 a.m. 

All right, we're adjourned. 

[Whereupon the meeting was adjourned at 4 p.m., to reconvene, 
Sunday morning, November 21, 1976, at 10 a.m.] 



MEETINGS OF THE 
AMERICAN INDIAN POLICY REVIEW COMMISSION 



SUNDAY, NOVEMBER 21, 1976 

Washington, D.C. 

The meeting was called to order at 10 a.m. 

Present: Senator James Abourezk, chairman; Congressman Lloyd 
Meeds, vice chairman; Commissioners: Ada Deer, John Borbridge, 
Adolph L. Dial, Louis R. Bruce, and Jake Whitecrow. Staff Director 
Ernie Stevens. Administrative Assistant, Ms. Ernie Ducheneaux. 
Commission staff, Paul Alexander, Peter Taylor, Ray Goetting, 
Donald Wharton, Charles Wilkinson, Charles Peone, and Patricia 
Zell. 

Chairman Abourezk. The Commission will resume its session. 
This morning we will start in on Federal delivery systems and if you 
are ready to go, Ernie, we are ready. 

Mr. Stevens. The section on Federal delivery systems is chapter 7. 
We'd like to begin with the general principles, or the end, and then 
return and go over each section. 

Chairman Abourezk. What page will we be using? 

Mr. Stevens. We start on page 70 under chapter 7. 

Chairman Abourezk. OK. 

Mr. Stevens. Before we get started on the principles, I want to 
emphasize that Ray Goetting and Chuck Peone are two of our staff 
people assigned to the management study team. Ray was the liaison 
with the management team and both Chuck and Ray went to the 
field, particularly in Aberdeen and Phoenix, and participated with 
separate study teams. Also, the three of us, with the assistance of a 
couple of other people, will be writing the portion of the Federal 
Administration Federal Delivery Services. 

One of the things we would like to emphasize is that the Commis- 
sion has to fundamentally lay down some kind of commitment for 
change. There may even be a possibility that we recommenit that the 
Indian people make a commitment to fundamental changd. People 
begin to get irrational when they start talking about time context. 

When the BIA management study was announced, the rumor 
started the very next day about who was going to lose at every office. 
I don't see how that could happen for some period of time for a number 
of reasons having to do with the mechanics of how the management 
study is implemented. 

I think the tribes and Congress and the executive department 
should make a fundamental commitment to change on the basis of 
what's needed in the BIA. What's needed is to make the Federal 
delivery system conducive to the tribal planning at the reservation 
level. 

(135) 



136 



If that's done and if it's mechanically dealt with, then what follows 
is that the BIA is no longer in the business administering and super- 
vising Indians. If they're in the business of technical assistance, then 
the very nature of what the Indians need will require those office- aJ 
a part of the process to change. 

One of the big problems we had in terms of reaction to 1 lie manage- 
ment^ study and all is that people don't understand that what we are 
advocating is a process, not an event. 

I think moving the Bureau of Indian Affairs into another depart ment 
and so on is a process. I have heard the Commissioner, his staff and 
other BIA people, including the Under Secretary commenting on the 
management study. It is felt that if we're going to go to an inde- 
pendent agency, there i^n't any sense of an independent anything 
unless fundamentally, you deal with the main agency and make it 
functional and make it efficient. That's why we must deal with this 
BIA management study first. 

■Chairman Abourezk. That's right, if you implemented the manage- 
ment study, it doesn't really matter where the agency sits. It's got to 
be implemented anyhow and then it's even much better if you draw 
out the agency and put it out as {in independent sort of thing away 
from the Department of Interior. So I think you're right and that 
there's no logic in what the critics of the management study are saying. 

Is it true, I heard this, maybe you can verify this, that the area 
directors grabbed the management study as soon as it came out and 
said start showing it to the tribes and say look here, this means ter- 
mination? Is that what they were spreading around about the manage- 
ment study? 

Mr. Stevens. Yes; they had a special meeting immediately after 
the release of the report and it was interesting because initially, their 
attitude was that we were "doing nothing" over here. So when they 
saw the management stud^y, they had to get together and discuss all 
over again what they were going to do. 

The upshot of that meeting was a letter which I had but I don't 
have available, from the Commissioner either to the Secretary's office 
or to the field. This sort of action is an example of what goes on in the 
Bureau. They said, now, we w^ant everybody to understand that this 
BIA management study was done as an independent study. It has 
not been endorsed by the American Indian Policy Review Commission 
nor by Congress, so what we should do is sit back and wait and see 
what happens. 

OK, well, that's well and good. But they put out an RFP (a request 
for proposal), to order up the machinery for the computer systems. 

Chairman Abourezk. Recommended in the management study? 

Mr. Stevens. Yes. And we have a problem with that (at a later 
point, Chuck Peone can discuss the technical details since he's familiar 
with it). The management study recommends a management infor- 
mation system be set up in the Department of Interior that can be 
made accessible to tribes for their use. This can be done rather easily. 
The problem is that the system the BIA is installing is something 
they've had on the shelf right along. It is not in accordance with the 
management study team's recommendations. It is obsolete now. 

Mr. Whitecrow. Mr. Chairman, realizing that what we are doing 
here is taking a look at this whole entire Federal administration and 



137 



its delivery system. Those past few days we've been discussing the 
sovereignty of a tribe, we've been talking about the jurisdictional 
processes and the trust relationships of the Federal Government anfl 
I believe each of these subjects are most appropriate lor whal this 
entire Commission is about, also realizing the importance of the 
Federal administration, its structure, the management review that 
we have done on the BIA and also understanding that Indian tribes 
are wanting a return of their powers, a return of the authorities that- 
they need to make decisions on their own, and we've also discussed 
changing some jurisdictional processes and recommending the change 
of some laws, particularly that in relation to trust responsibility 
whereby a tribe could perhaps overrule the Secretary in a decision. 

I would like to insert into the record, if I may. Our historian, 
D'Arcy McNickle, and a book that he wrote, They Came Here First: 
I w r ould like to read, if I may, the preface to this book to set the stage 
for the discussion of this day's activity insofar as this Commission 
is concerned. 

The preface of this book I think is most appropriate to what we're 
talking about here and the fact that regulations are established and 
as a result of these regulations, delivery service of personnel go down 
to the American Indian. 

The preface reads as follows: 

Trouble had come to one of the Hopi Indian villages. The people had been 
refusing to dip their sheep. They had even refused to count their sheep. These 
were matters which expert range managers considered important. Worse than 
that, since this was war time, these Hopi Indians had refused to register for 
selective service and neither would they sign a paper saying that they had religious 
scruples against taking up arms. 

These peaceful people, as their name signifies, were causing serious trouble. 
It was necessary to find out why and to remove, if possible, any causes of just 
complaint. The Government official drove up the Mesa Road — perhaps it ought 
to be explained that the Hopi Indians live in Arizona and what on most maps is a 
blank expanse between the arms of the Colorado and the Little Colorado Rivers, 
there are three mesas like the fingers of a hand on which the Hopi villages crouch 
in the sun. 

The land itself is the Northwood Running Black Mesa which breaks into the 
wild country of the San Juan River. The Government official had to ask why 
these things were. Perhaps it was a misunderstanding. He was there to make 
things right. 

The speaker for the village had come from the fields in workclothes but he 
honored the official by slipping a pair of store trousers over his earth-stained 
dungarees. The afternoon wore into evening while he talked to the things that 
troubled the villagers. As he talked, the troubles which were in his mind, settled 
upon the mind of the Government official and he, who had come to explain away 
doubt and misunderstanding, found perplexity instead. 

The Hopi spokesman was never cantankerous. His voice was not even sharp 
but his questions had a terrible urgency. He said when the Hopi people came 
from the underworld, they found people living in this land before them. These 
people had been living here a long time ago and they know many things about 
the world and the right way to live. 

Our Hopi people went to them and said we would like to live here with you. 
They replied, all right, you can stay. We have certain rules here, ways of living, 
and you will have to follow these rules, then there will be no trouble. That's how 
it was. 

The Hopis did as they were told and they never had trouble. After awhile, 
the W 7 hite men came. They did not ask if they could live with us, they just moved 
in. They did not ask what our rules were. Instead, they wrote rules for us to follow. 
Now you just obey these and you won't get into trouble, they said. How do you 
explain that? 



138 



He did not wait for any response. There were too many questions yet to ask. 
"Why do you put us in jail? He was not a large man but he spoke with such gravity, 
•one felt that he was indeed a man of strength and weight. In our Hopi life, we 
have had bad people who did not keep the law, who went against the rules of the 
village. We had our ways of controlling these lawbreakers without putting tlx in 
,in jail. 

Now you bring us laws and rules which are not even our own and then you ■< nd 
us to jail for not obeying them. How do you explain that? Still he went on. Now 
we have a drought. It has been 4 years and seems to get worse. The rains come 
less often. The grass is dying everywhere. 

You tell us we will have to give up our sheep. They are the only food we have 
yet you say we will have to give them up. Is this sensible? The sheep did not 
stop the rains. It is you who have caused that. You make regulations for us and 
►our children. They must go to school. We must dip our sheep. We must count 
our sheep. We must write our names on papers we do not understand. You say 
it is to get sugar or to fight a war we know nothing about. 

You have put so many of these regulations on us that we are confused. We are 
not able to concentrate on the things that a Hopi must do. The ceremonies he 
must do and the thoughts he must have. This is why it never rains and why the 
grasses are scarce. 

Before we had more sheep than we have now, yet no one suffered. That is 
what I say. 

When the Government official came away in the dark moonless summer night, 
he thought of all the answers which an intelligent, civilized official must give in 
defense of his creed and bis position. He even wrote them down on paper when 
he got to a lighted room. 

But in the morning when there was sun again, the written answers did not 
suffice. Nothing that had been written before by white men would suffice either. 

I was present at that conversation on the mesa and I tried to find answers to 
the questions 1 . As it turned out, there were hundreds of questions. One led into 
another and gave the mind no rest. How did it happen that these Hopi Indians 
after 400 yeara of sharing their ancient land with invaders from another world, 
were not crushed? How was it that they could stand off unhurried and ask the 
white man to explain himself? This was not the vanquished and the vanishing 
American. Here was a living voice and a competent voice asking the white man 
to justify his works. This was not what one read in the books. 

To explain it, I discovered one had to start way back and explain the Indians. 
Where did they come from and when and how? What was it like when they 
first came into' the land? Where did they make their homes? Perhaps if one 
really tried, one could visualize something of what it was like. One ought to 
try. It was important. 

That concludes the preface of this book and I would like to make 
just one further comment that I think this Commission should cer- 
tainly, take into account. These kinds of cultural backgrounds of 
these kinds of drastic changes to those kinds of drastic changes to 
allow the Indian people to become once again users and acquirers of 
their culture, of their language, and of their way of life. 

As a country, the United States of America needs to wipe a black 
mark out of its history and to once again allow the native peoples of 
these United States to begin assuming once again, asserting those 
things that made them so great insofar as their relationships with 
one another are concerned. 

I think as we enter this realm of study of determining the Federal 
relationship and the Federal structure, we need to take into account 
that total application. Thank you. 

Chairman Abourezk. Ernie? 

Mr. Borbridge. Mr. Chairman, I recognize at this point, Mr. 
Chairman, that we are not only taking a look at the whole Federal 
delivery system but really discussing as a very important element, 
the Bureau of Indian Affairs Management Study which has been 
completed for and at the direction of the Commission. 



139 



In order to bring the matter properly before us and in order to have 
the Commission on record with respect to that study, 1 would move 
t lint the Commission adopt the Bureau of Indian Affairs Management 
Study with the understanding that the staff would be bringing forward 
a schedule for implementation of that study. 

Mr. Whitecrow. Mr. Chairman, I second that motion. 

Chairman Abourezk. All right. There has been a motion made and 
seconded to adopt the Bureau of Indian Affairs Management Study. 
I want to, if I might, offer as an amendment to that motion that some 
documents handed to me this morning by the staff that include a 
Bureau of Indian Affairs organization chart, several exhibits which 
delineate the funding sources and recipients of those sources broken 
down by area offices, exhibits 1, 2, 3, and 4, be made a part of the 
appendix of that management study. 

These are apparently factual data. Ernie, may I ask you, where were 
these obtained from? 

Mr. Stevens. From the management team. They didn't include it 
in the study. 

Chairman Abourezk. OK, so it can be properly included in the 
appendix? 

Mr. Stevens. Yes, sir. 

Chairman Abourezk. I just offer that as an amendment to the 
motion and ask if you will accept that as an amendment. 
Mr. Borbridge. All right. 

Chairman Abourezk. All right, there is a quorum present this 
morning. I think we'd better do this by rollcall to show the quorum 
because this is an affirmative action that we are taking. 

Mr. Borbridge. Mr. Chairman, prior to the vote, my intent at 
this point is that I fully realize as the Commission proceeds that by 
virtue of various other reports and recommendations, we may very 
well modify this motion if it is adopted and I recognize that. 

Chairman Abourezk. It is possible to do that. The Commission can 
override itself or reconsider this at a later date but I think I'm appre- 
ciative of your motion and the support for it since I think it's im- 
portant to show that we are making a great deal of progress and that 
we do have this management study that is a fairly final form. It's 
not like the other—yes, it's been printed as a committee print for the 
Senate by the Government Printing Office? 

Mr. Stevens. Government Printing Office. 

Chairman Abourezk. And I might just add by way of colloquy on 
this, I have been in touch with Carter's people who were handling 
Indian affairs for him during the campaign. We sent them a great deal 
of information of the work of the Commission as well as the manage- 
ment study and they indicated that as sort of the management study 
specifically that jived right in with their reorganization program and 
so I think it's especially important that we make this an affirmative 
action this morning as the Carter administration starts to get into gear. 

So unless there is any other comment, the clerk 

Mr. Bruce. Does our action here fit in with what you are going to 
be doing now? You still will come back and go over the points, won't 
you? 

Mr. Stevens. Yes, sir. 
Mr. Bruce. OK. 



140 

Chairman Abourezk. The clerk will call the roll. 
Ms. Duchexeaux. Commissioner Borbridge? 
Mr. Borbridge. Yes. 
Ms. Duchexeaux. Commissioner Bruce? 
Mr. Bruce. Yes. 

Ms. Duchexeaux. Commissioner Deer? 
Ms. Deer. Yes. 

Ms. Duchexeaux. Commissioner Dial? 
Ms. Dial. Yes. 

Ms. Duchexeaux. Congressman Meeds? 

Congressman Meeds. A}c 

Ms. Duchexeaux. Commissioner Whitecrow? 

Mr. Whitecrow. Aye 

Ms. Duchexeaux. Senator Abourezk? 

Chairman Abourezk. Ave. 

Ms. Duchexeaux. Seven. 

Chairman Abourezk. The vote is seven in favor. There are no 
negative votes. The motion as amended is agreed to and the record 
will show that seven members are present all voting aye and the others 
were not present and therefore did not vote. 

Ernie? 

Mr. Bruce. Mr. Chairman, may I make a comment first because 
I've been getting telephone calls since 6 o'clock this morning. 

Chairman Abourezk. On Sunday morning, you are entitled to 
comment on that. 

Mr. Bruce. You are not going to recommend the abolishment of 
the Bureau. I think it should be pointed out here and let me say 
first that I'm delighted with the action. I never thought it would 
come this soon; we've got a lot of work to do. 

I wanted to say that this is one of the reasons why I accepted the 
honor of being one of the commissioners because of this study. As 
many of you know, I did my best with a team of people surrounding 
me to make changes in the Bureau. I knew it was inefficient; I saw 
how it functioned as an inefficient organization. 

I think people should understand our people, the Indian people, 
that we're not trying to abolish the Bureau itself. We are trying to 
move it somewhere where it can be efficient. I think I said the other 
day that an Indian commissioner can't function and do right by his 
own people as long as he doesn't have the full say, as long as he has 
to report to the Secretary of Interior. They have those powers and 
authority. 

So the Bureau of Indian Affairs and whatever we set out to do and 
that's in the separate organization, will include a corps of employees 
of the Bureau of Indian Affairs. As we go along, I am sure we are 
going to be facing some of these issues and as we do, I want to point 
out some of the personal experiences I had in trying to carry out and 
making the Bureau a more efficient organization. 

So I think we ought to go over this carefully even though we have 
passed it. The key to all of it, and you know that 75 different reports 
have been made over the j^ears, is that none of them have been im- 
plemented. So that's the key. Can we implement this report so that 
it can be a more efficient organization? 



141 



This is the strongest, largest, toughest bureaucracy in the Govern- 
ment, 1 know how it functions. Before I even had word- out of my 
mouth concerning an area office, the word went out through the 
whole country and everybody began to put on their skids and tang 
on and drag their feet and set up organization meetings to combat 
what we've tried to do and it was sad from my standpoint to move 
out of the Bureau and not be able to accomplish the things that I 
felt were necessary. 

In joining the Commission with support of the Commissioners, I 
am delighted to have this action take place and I want to do all we 
can but I want to point out again that how we implement this is the 
key. I don't think the general Indian public ought to be afraid we 
are going to wipe out the Bureau completely because we need to take 
a good look at how that organization functions in Government 
efficiently. 

Chairman Abourezk. Well, it seems to me, Louis, that in my 
reading of the management study, it does not abolish the Bureau of 
Indian Affairs. What it does is, in effect, conforms the Bureau of 
Indian Affairs to the statements on self-determination that every 
Indian tribe in the country has made. 

It says that the Bureau will revamp its organization, make itself 
into a technical service agency to assist the Indian people at budget- 
ing, and other programs will be clone largely by the tribes themselves 
with whatever assistance they need from the Bureau. 

It seems to me that that is what the Indians have wanted from the 
Bureau. They haven't wanted the Bureau to be their daddy and 
mama all at the same time — which is what it's been — and it will allow 
the tribes, it will give them more freedom and with greater assistance 
than they've ever received from the Government. 

So those people, the politicians and the Bureau who were trying to 
do their best to discredit this Commission and the management 
study itself, are not telling the truth when they go around saying 
that. I think you brought up a great point and I appreciate that. 

Mr. Whitecrow. Mr. Chairman, I would also like to comment on 
some of the words that Mr. Bruce spoke to make this Commission 
aware of also what happens out there at the very lowest levels of the 
delivery of Federal services. I have been on that particular end of 
delivery of Federal services. I have also been at that particular end 
at the time President Nixon announced his self-determination policy 
on July 1970, attending the first intertribal council of eight tribes in 
northeast Oklahoma urging the tribal leaders at that particular 
meeting to begin looking at self-determination with an affirmative 
viewpoint — and at the same time, having seen the same tribal leaders 
being confronted with employees from within the federal system, 
denouncing that particular policy and also preaching the fact that it, 
in effect, was termination and that they should be very, very fearful 
of a new determination policy because of the word termination within 
the word determination. 

The attitude of those employees at that particular level was such 
that they individually and collectively were fearful of their jobs — 
fearful of losing their particular positions. I think this is something 
that we need to be very, very careful of and the fact that Indian 



S2-749— 77— vol. 4 10 



142 



people be made aware that these things happen from a political 
standpoint even there at the local level and can throw cold or hot 
water upon the Indian people in regard to any change. They can also 
apply pressures by indicating to those people who have children in 
school that if you want your children to stay in school, you'd better 
not approve this particular policy because you are going to lose it. 

Those kinds of our fears are impressed upon the Indian people 
daily out there and we must, in this system, in this change, provide 
that those employees functioning at the very lowest level, understand 
totally what the trust responsibility of the Federal Government is — 
that they are liable for the delivery of that trust responsibility and 
the fulfillment of the Federal Government's trust responsibilities and 
its relationship with the American Indian not just for their own en- 
joyment and not for their own future. 

They are there to help the American Indian, not to hold him back, 
not to put more obstacles in it and their interpretation of rule and 
regulation is most important. I think if we can cover this, then our 
system will work. 

Chairman Abourezk. It's been suggested by John Borbridge for 
the benefit of all the Commissioners when they go back to their 
particular constituencies that an explanation might be required of 
them of what the management study does. 

I wonder, Ray, if you might be able to put together today and 
tomorrow, a very brief, simple,, clearly written, easy to read analysis 
of what the management study requires, and state what it is and what 
it is not. In fact, it is not termination and it is a reorganization of the 
Bureau and provide that to all the Commissioners so that there will 
be a uniform policy statement on the part of the Commissioners and 
if we can have that before we adjourn and everybody leaves town 
this week. 

Mr. Goetting. Yes, sir. 
ij Mr. Stevens. Mr. Chairman, one of the things I wanted to tell the 
Commission just so that we have it clear and on the record is one of 
the chief criticisms against the management study. I have . an idea 
of where it came from. It is that it doesn't deal with! the trust and just 
for the record, this was not meant to deal with the trust. It was meant 
to deal with management efficiency. That is, specifically 

Chairman Abourezk. Procedural issues? 

Mr. Stevens. Yes, sir. Personnel management, information systems, 
and organization. It was not to deal with the trust at all. In this, we 
are merely talking about management efficiency and information and 
the handling of persomiel and budget. 

Chairman Abourezk. That should be included in the statement as 
well, Ray. 

Mr. Goetting. Right. 

Chairman Abourezk. OK, Ernie, go ahead. 

Mr. Stevens. I will read the principles that we arrived at and then 
we'll go back to each particular section. The first one will be budget. 
There is a consistency between the findings of the Commission task 
forces in numerous contemporary expressions of Indian opinion. 

Chairman Abourezk. Page 71, right? 

Mr. Stevens. Yes, sir. Expressions of Indian opinion have been 
stated through tribal resolutions, nationally and m organizational 



143 



Resolutions and policy statements as well as an examination of previous 
Indian opinions since 1900. Further consistency in agreement is found 
as evidenced through an examination of countless management, tech- 
nical programs, and budget reviews completed by private 1 aii(J public 
agencies. The Commission staff concurs, based on its own examination 
of the various obstacles from the delivery of programs and services. 

The staff, therefore, recommends the adoption of the following 
general principles which will provide guidelines for the recommenda- 
tions of the American Indian Policy Review Commission which 
would result in an adequate Federal delivery system for Indian tribe-. 

One: Fundamental change and Federal administrative reform be 
proposed to express the intent of Congress and the desires of Indian 
people. The exchanges must be conceived as a rational process over 
time rather than an event with primar}- emphasis on Indian consulta- 
tion and input. 

Two: You already dealt with this — the Commission should fully 
endorse the BIA management study recommendations and further 
recommend to Congress that a positive vehicle be enacted to expedite 
the proposed implementation of these recommendations. 

A specific implementation plan will be proposed as a necessary 
first step in the process adhering to the following principles: 

The BIA budget system be modified and improved to include 
tribal needs, assessment priorities and goals designed for long-range 
planning by tribes at the local level and placed in the proper perspec- 
tive of the total Indian budget. 

The BIA personnel system be modified and improved to incorporate 
the legal intent of the law regarding Indian preference, by providing 
management skills and training to meet the needs of Indian people 
at the local level. 

Improvements include developing a separate Indian services 
discussed in section B 

Congressman Meeds. Mr. Chairman, can we have a little more 
indepth discussion of that proposal? 

Chairman Abourezk. You can stop him at any time. 

Mr. Stevens. Yes, sir. Yes; there's an entire section of this. Would 
you like to go over to that one? 

Congressman Meeds. Xo; you don't have to go over the entire 
section. Could you give us a little broader stroke of the brush there? 
What page are } r ou talking about in the report first? 

Mr. Stevens. It's page 54, section D. Wait a minute, section D is 
page 49. It's " Federal Delivery Systems Under Indian Preference." 

A good part of that basis has been found in the recommendations 
from task force 9 related to the Bureau of Indian Affairs and the 
Indian Health Service. A summary of those recommendations is 
consistent with the findings of the BIA management study and task 
force 9's analysis. 

Management reports on a consensus of Indian opinion identifying 
the adoption of the following broad principles in Indian Career Service 
should be established — distinct from the Civil Service Commission 
with the following attributes and goals: 

Eliminate the institutional barrier created by the discretion of the 
Secretary of the Interior and the Civil Service Commission. 



144 



Standardize and define meaningful employment of Indians and 
programs for the benefit of Indian people. 

Project and enhance the development of tribal self-government 
through training and development of personnel systems. 

Provide a realistic mechanism for tribal governments. 

Assume control of Federal programs. 

Assist tribal government in developing workable personnel systems 
in line with Federal-Indian program services by utilizing standardized 
personnel systems designed to meet local community goals. 

Develop personnel criteria whereby non-Indian applicants could 
function under excepted appointment. 

The Commission directed the staff to prepare a specific plan. I 
wanted to say that a part related to the recommendations made by 
task force 9 — I know I have personally supported this for some time — 
is that the relationship by the Bureau of Indian Affairs and the Indian 
Health Service with the Civil Service Commission is, in fact, illegal. 

The 1934 act specifically provided for a separate service and, as a 
matter of fact, in 1953 or 1954, Felix Cohen, who was the Solicitor 
of Indian Affairs, at the time, wrote an article in the Law Review in 
which he said the Bureau of Indian Affairs was 90 percent in violation 
of the law. 

When Mr. Bruce and others, including myself were in the Bureau, 
we were preparing recommendations related to a separate Indian 
career service, but because we had announced full implementation of 
preference as a policy and knowing the kind of problems the separate 
service idea was going to get into, we decided to fully implement the 
preference at the first light. 

Whatever happens, I think that one of the main reasons I would 
support a separate service is that it is not that unusual. It would be 
unusual in that it would be predominantly Indian. Curiously enough, 
the system of using an excepted service for Indians was discussed in 
1934 in hearings and was specifically dealt with as not being appro- 
priate for hiring Indians. 

Since then, the Civil Service Commission and the Department of 
Interior have decided to use the Civil Service Commission which is in 
violation of the law. The specific wording in the law says "without 
regard to Civil Service." There have also been a couple of court 
cases — 

Let me read the law. "The Secretary of the Interior is directed'' 
and it doesn't say shall or ma}' "to establish standards of health 
aids, character, experience and knowledge and ability for Indians 
who may^ be appointed without regard to civil service laws to the 
various positions maintained now or hereafter by the Indian office 
in the administrational functions or services affecting any Indian 
tribe. Such qualified Indians shall hereafter have the preference to 
appointment to vacancies in an}' such positions." 

I believe there is further discussion in the case law — the Freeman 
case — the Mancarri case. I also believe there are self-limitations on 
the ability of the Secretary to use any kind of discretion. 

Now, the case law has tightened it up even further. Fundamentally, 
the problem with the Interior Department and Civil Service can be 
dealt with rather easily. However, as a former Federal administrator, 



145 



I can say there is a disinclination on the part of the executive depart- 
ments to recognize that law stands over Executive orders. 

Whenever you ask them and argue with them about it, they always 
point out Executive order so and so or such and such. The fact of the 
matter is, the 1934 act supersedes any attempts by the executive 
department or anybody e ' se to utilize an Executive 4 order or admin- 
istrative act to change the taw. 

Chairman Abourezk. What are you recommending now that the 
Indian Commissioner do with regard to Indian employment? Can 
you give us just a list? Tick them off one, two, three. What is your 
recommendation so far as employment in Indian preference? 

Mr. Stevens. We are just recommending that the Secretary ■ 

Chairman Abourezk. How would it be implemented? 

Mr. Stevens. Pete can answer that. 

Mr. Taylor. I was the chairman of Task Force 9 that examined 
this problem at some rather great length. Our specialist on that fast 
force, Karl Funke, had previously written a law review article on the 
subject analyzing the 1934 act very exhaustively and Karl carried 
the main burden in developing the picture on this thing for our task 
force. 

At page 49 here in the book, there is a reference to our task force 
report and the page numbers where the detailed analysis of this is 
contained and I think probably to get a detailed picture of the prob- 
lem, you would have to read the task force report. 

Chairman Abourezk. Well, Pete, what we would like to know is, 
we assume the legal authorization is there, it's not that we're going 
to make it there so far as new employment practice is now. 

What I'm asking is: What do you recommend by way of procedure 
for accomplishing Indian preference? 

Mr. Taylor. I'm sorry, I was just making an introductory statement 
to try to get to that. Our recommendations appear on pages 51 
through 54 and I would just like to point out a few of the major ones 
which I think will respond to the question you are asking me. 

Cn page 51, there is the recommendation — I should preface this by 
saying as far as we're concerned, the law is essentially adequate at 
this time certainly as far as the Bureau of Indian Affairs and the 
Indian Health Service is concerned because they are both bound by 
section 472 of title 25 which Ernie just read to you. 

So recommendation No. 1, I think this Commission should rec- 
ommend to Congress, to the appropriate committees of Congress, 
that oversight hearings be held over BIA and the Indian Health 
Service to find out why they haven't complied with the preference 
laws. Why a separate Indian civil service has not been set up. This 
was dictated by Congress 40 years ago. 

I happen to know through conversations with Reid Chambers who 
was the associate solicitor for Indian Affairs, he's been grappling 
with this problem over the past year. Karl and I had several discus- 
sions with him and Reid Chambers agrees that the law does require 
separate Indian service. 

Apparently, this was agreed upon even as early as 1971 and I 
think Harrison Loesch was involved and Ernie, correct me if I'm 



146 



wrong, didn't Harrison Loesch agree that a separate service was 
required? 

Mr. Stevens. Commissioner Bruce was there. 

Mr. Taylor. So what we recommend here are oversight hearings to 
find out why they haven't done anything or what they are doing now 
to comply with the law. I believe there is movement afoot down there 
to try to bring themselves into compliance. 

At the very top of page 52 in the first recommendation there, I will 
read this paragraph 

Chairman Abourezk. Pete, you won't need to read that because 
everybody up here will be able to read it themselves. What we're 
asking for is a capsule summary, one, two, three, four. What are you 
recommending by way of implementing Indian perference? 

Mr. Taylor. First, we recommend the oversight hearings. Second 
of all, we recommend that Indian preference be extended to every 
Federal agency which is delivering any programs to Indians. 

Chairman Abourezk. All right. 

Mr. Taylor. That was the original intent of the act anyway but 
because of the way 

Chairman Abourezk. How are you going to — let me rephrase the 
question. What are you going to do to train and make certain that 
the requirements of the law are fulfilled as qualified that Indians be 
taken into the Indian service? 

Mr. Taylor. I would amend section 472 to extend it to all Federal 
agencies as step 1. 

Chairman Abourezk. Once you've done that, then what are you 
going to do? 

Mr. Taylor. There should be a lead agency that administers the 
separate Indian civil service. Any person in any Federal agency who 
is involved in a program that is specifically related to Indians should 
probably undergo a training procedure under the aegis of whoever 
this lead administrator is. 

In this thing here, we're saying that the Secretary of Interior 
should be the lead person. Now obviousty, if a separate Indian service 
is created or a separate Indian agency, that lead burden would shift 
to the new agency but there should be a training program. 

We have, in the Department of Commerce, the Economic Devel- 
opment Administration and the Office of Minority Business Enter- 
prises. In the Department of Agriculture, there are specific Indian 
programs, and also in Small Business Administration. Congressman 
Meeds, I know you've had correspondence with SBA asking about 
some of their policies. 

I think that correspondence reflects the lack of sensitivity and 
awareness that would require this sort of training of these people so 
that they understand really, what Indian affairs is all about. 

Mr. Whitecrow. Mr. Chairman. Pete, I'm wondering whether or 
not it would be better to hold oversight hearings by the Congress on 
this or whether it might be better to ask the Secretaries to come 
before this Commission and to explain why Indian preference was 
never implemented. Is this not one of our charges? 

Mr. Taylor. The Secretary of the Interior would probably be the 
appropriate person and a man named Hampton with the Civil Service 
Commission. I don't know whether he is the director of that Com- 



147 



mission or just what his position is but those two people would bo 
the most able to explain this problem. 

Mr. Whitecrow. Would that not be one of the charges as I see our 
responsibility in this law? This is one of the major areas of study and 
I'm just wondering why we did not get those people before this ( om- 
mission to respond to those types of questions. 

Mr. Taylor. I'm not sure I can answer for the Commission. I 
think it might be wise to bring them up, yes, to explain tins. I think 
I have to leave this for the Commissioners to discuss among your- 
selves but certainly, either this Commission can recommend to 
Congress that they have the oversight hearings or this Commission 
itself can hold it. 

Mr. Whitecrow. Mr. Chairman, I would like to hear some dis- 
cussion among the Commissioners here as to what their feelings are 
in regard to this. I think this is a very important issue. If we find that 
direction of Congress has been really put aside for 40 years and I 
think we should certainly find out why this has been done. 

I would like to hear some discussion of the other Commissioners in 
regard to this. 

Chairman Abourezk. Well, until another Commissioner wants to 
speak on it, I'll just give my own view on it, Jake. 

I think at one time, it might have been appropriate for the Com- 
mission to call the Secretary and make him explain why. I think it 
is late in the session right now for that kind of thing to take place so 
far as we are concerned, for a couple of reasons. 

We already know approximately what our recommendations are 
and that is kind of what our task is, to make recommendations to the 
Congress so far as implementing Indian preference. That's what 
we're trying to get straightened out now. 

So therefore, it's kind of beyond the pale of the Commission to 
try to get them up and have them explain why they haven't done it. 
We could tell them what to do which is what we're going to do with 
this report but so far as now hauling up a guy who is just about to go 
out of office, Kleppe, I'm not sure whether we would be productive 
there. 

I think we would be much more productive by waiting until the 
new Secretary comes in and when he comes up for his nomination 
hearings, if James Abourezk over in the Senate Interior Committee 
lays in on him and asks him what he intends to do about Indian 
preference, it might be an awfully lot more effective. 

That's my own personal view of it and I don't know what the rest 
of the Commissioners think. 

Commissioner Bruce. Mr. Chairman, I would like to say this. 
We've had a lot of authority in the Commission and we've had a lot of 
opportunity to, oh, I suppose subpena if we wanted to, different 
people. There was a time when I think and I'm sure all the Commis- 
sioners would have liked to have had an opportunity to fire some 
questions at these Secretaries and not the guy who sweeps the hall. 

It's important that they know that we had this right. I don't like 
people saying well, you gu}^s had the right to subpena and you never 
did. That was one question this morning. So if you think that this is 
the right procedure and I agree that we are bringing before this group 
now, lame ducks, realty, and the procedure is to fire away at you and 



148 



their committee at their confirmation, then I go along with that and 
I want it on the record that I've always felt we did not use that. 

We didn't get all the information we wanted from those people. 
Even I was told, we're not going to give it to you, we don't give a 
damn what you say about the subpena thing and that gripes me be- 
cause we didn't use it to the fullest and we'll never get another chance 
from the Indian Commissioners' standpoint. 

I want it on the record that I'm not happy about the fact that we 
didn't carry out this authority that we had. 

Commissioner Dial. Mr. Chairman, Commissioner Bruce, yon 
have time even after January, if necessary, after January the 20th, 
when, of course, I guess the new Cabinet will have been chosen, at 
least we'll know who they are but the life of the Commission is until 
July 1 and even when the report is finished, if it's necessary to subpena, 
you could do it up until July 1, couldn't you? 

Chairman Abourezk. Yes, if we are still in session, you could. 

Commissioner Dial. Do you officially adjourn before July 1? 

Chairman Abourezk. I don't think so. 

Commissioner Dial. Von are alive until then, therefore, you would 
have subpena power. It would seem to me you would. 

Chairman Abourezk. It is one thing for us to say that we should 
have done it earlier and we didn't and perhaps we should have but 
it's another thing to say we're going to do it just to exercise our 
power. We ought to have some tangible benefit in order to do it. 

Commissioner Dial. If the new Secretary didn't cooperate, you 
could deal with him but he will probably be a very good man. 

Chairman Abourezk. The time to get to those people is before 
their confirmation. 

Mr. Taylor. Mr. Chairman, if I could make a comment here. 
Mr. Bruce, I know that the Indian community is quite concerned 
about the fact that this Commission has not used its subpena power. 
In some ways, you know, I think staff had something to do with this 
because we were concerned about having ducks in a row before you 
bring a person up to testify. 

But I would like to say this. I think it's important that the Indian 
community know that the subpena power has not been wasted. One 
of the very first things that happened when I came up to the Folic}' 
Review Commission was that we tried to get some documents out 
of the Department of the Interior and Interior simply said no. 

Ernie wrote an extremely strong letter to Dave Lindgren who was 
then the Deputy Solicitor and apprised him of the fact that we did 
have subpena power. It's my understanding that the special assistant 
to the Solicitor was heard running up and down the halls of Interior 
the next day saying, my God, I didn't know they had subpena power, 
and we got those documents within 7 days. 

The same thing happened with the Indian Health Service in obtain- 
ing a lot of information there. There was a lot of foot dragging going on 
and a letter was sent and this is a part of the Commission records 
that will be on file but our letter was sent to the Secretary of HEW 
apprising him of our subpena power and we got that information. 

Subpenas may not have been issued by this Commission but the 
subpena power was in fact used and I think that it's important that 
that be on the record. 



149 



Commissioner Bruce. Arc you saying to us now that you got full 
cooperation from all of the Federal agencies? 

Mr. Taylor. Not at all. I don't mean to imply that. But T don't 
want — I don't think it's fair for this Commission to be criticized for 
not using its subpena power. I don't think it could have beep P6ed. 
This Commission was not established with a sufficient lifetime to 
actually use the subpena powers if we have to have information 
that is really necessary. Every one of us knew that when this Com- 
mission started. 

What I am trying to say, I am trying to answer the concerns of 
the Indian people and the criticisms that are being thrown at this 
Commission because in fact, the subpena power was in fact used. It 
was the threat of it and telling people, by Cod, we got this and then 
we got some cooperation. 

No, we didn't get all the cooperation we needed, not at all, but the 
subpena power was not a wasted thing. It was used. That's what I 
am trying to establish. 

Commissioner Bruce. Ninety percent, seventy percent, minus ten, 
what? Where do you figure it? Would you say 75 percent of the agencies 
cooperated? 

Mr. Taylor. No, I don't think I would care to put that kind of 
figure on it. From my own standpoint, my experience is relatively 
good except for this very first instance and with the IHS, there 
was foot dragging going on. 

In fact, what happened there was, well, the Indian Health Service 
was trying to get figures for us out of their area offices. We found prob- 
lems there, administratively, and the fact that they didn't have 
records immediately available, even though their own procedures 
said that they should have them, that's one area of oversight that 
could be gotten into. 

But what happened was that once that information started being 
collected, the Secretary's office got involved and all of a sudden, 
all of that information was getting political screening through the 
Secretary's office at HEW and rewritten into softer terms, consoli- 
dating figures so the things weren't so black and white of the actual 
situation. 

No, I don't want to say that we got good cooperation but I do 
want to say that the subpena power was not a wasted thing. I am 
trying to say this in the interest of this Commission. 

Chairman Abourezk. Thank you. Let me close this portion of our 
discussion off. I think we ought to get back to our deal just by saying 
that I can't recall and I've been in Congress 6 years, 2 in the House 
and 4 in the Senate, and I can't recall ever using this subpena power 
or issuing a subpena out of a committee in all that time, even though 
the power was there and I think as Pete said, the knowledge that we 
have it is sufficient in most cases. 

So I think it is short-sighted on the part of those critics who have 
complained to you, Louis, that we haven't used it. I just don't think 
that because you have a gun in your pocket, you ought to shoot 
at somebody with it. It just doesn't make that much sense to me. 
If you need to do it, go ahead but we really haven't needed to do it 
and if we had wanted to call the Secretary of Interior, I think we 
could have done it without the subpena anyhow. 



150 



Commissioner Dial. Just one other remark. I believe the first time 
I met Mr. Taylor, it was pointed out that he needed some very 
important documents and had we not had subpena power, I don't 
think he would have been able to have completed his study. Right, 
Mr. Taylor? 

Mr. Taylor. Yes, that is correct, Commissioner. 
Commissioner Dial. And at that time he was not even hired. 
Mr. Taylor. That's correct, too. 

Commissioner Deer. This subject has interested me a great deal. 
The attitude and the cooperation of the various Federal agencies 
in complying with our request for information and I would like to have 
staff's assessment of some of the major agencies if they have been 
cooperative, if they haven't and what are the reasons and what are 
your interpretations of their actions? 

Mr. Stevens. Periodically, I guess the major problems were in 
HEW. We had some problems with the Interior Department. Sur- 
prisingly enough, we didn't have many with the Bureau. We have a 
recent thing regarding a request we initiated with the Interior De- 
partment on May 8th, 1976. We are still waiting for a reply. We are 
on our second letter saying "for the second time, stand and deliver." 

One of the major problem areas we had with HEW, was in their 
General Counsel's Office. We requested some preference materials 
and personnel information from Indian Health Service. I had the 
feeling that the General Counsel's Office or other parts of HEW 
were interfering. The people at Indian Health Service didn't tell us 
that but we heard rumors. So while we can point at the Indian Health 
Service and say it took them a number of months to provide us with 
certain information, I have a feeling the other parts of HEW were 
interfering. 

We had a specific occasion in which the General Counsel's Office 
just took us on and as we have pointed out, many of our battles were 
not public. It took a sharp letter from me or ultimately Senator 
Abourezk telling an agency to stand and deliver. That was the time 
they usually honored our request. 

The reason for this attitude, I believe is that they knew we were a 
joint Commission with a short life. They knew that by laying on us, 
they could delay. Initially, the Federal agencies thought the task 
force reports were the commission report in fact. So they all told each 
other, "Well, just lay on them for a year. By the time they get the 
information, they won't be able to use it anyway." 

Then when they saw it was going to be a longer period of time, they 
took a different tact. Then a whole process began ... it wasn't just 
the agency being late responding and you reminding them and then 
their complying with the request. A whole series of letters and/or 
telephone calls takes place. The General Counsel comes down to visit 
and then sends a representative to talk it over. The legislative liaison 
comes over and so on and so forth and when it's all over, you get what 
you requested eventually or else they give you what you want and 
leave out something that's absolutely key and maintain the}' didn't 
understand you. Then the ritual dance starts all over again. That's the 
problem. 

The principal problem has been that the Commission has a short 
lifetime. 



151 



Now curiously enough, one of the areas we had terrible problems 
with was not the blame of the agencies. There is no agency in the 
Federal Government, not GAO, not OMB, not any department of 
Government, that can define the Indian budget. That's the most 
significant part of the budget report which we have been working on 
internally and we cannot deliver because nobody can give us accurate 
information. 

A General Accounting Office report is a crazy domino thing. Some- 
body dreams up some figures and passes them on to somebody else and 
that person takes off on them with the results being that the latest 
General Accounting Office report on the Indian budget was taken 
from department estimates. 

The Federal Government cannot account for the Indian budget. 
So when an administration says how much money there is, it isn't 
accurate because it doesn't know. What's more, it can't account for 
the money after it has been allocated, to my shock and dismay, as 
some of my friends say. 

One of the area offices in the Bureau of Indian Affairs does not even 
account to the central office for what it expends. In fact I found out 
through one of their people, that the central office ordered this area 
director to release the information and he refused. 

As a matter of fact, there is no accountability in the Federal Govern- 
ment for Federal expenditures for Indians and so when we ask for 
information, it isn't just a matter of calling OMB. We went to the 
Office of Management and Budget and asked for the Bureau budget. 
We went to the Bureau to ask for the Bureau budget. The two agencies 
couldn't reconcile their figures within $20 million. 

So the most significant gripe concerning our budget material is 
nobody knows what the budget is and even when you get into line 
items, it's just incredibly hard to keep up with. 

So in the case of the budget and a few other items, the Government, 
any part of the Government, including our own arm, the General 
Accounting Office, cannot give us accurate information. 

Mr. Bruce. Mr. Chairman, as long as we are assured that the 
Congress will implement these recommendations, I'll be quiet 

Ms. Deer. Mr. Chairman, I specifically would like to get some 
comments on the Department of Justice. What kind of cooperation 
did you get from Justice? 

Mr. Taylor. Commissioner Deer, i I could respond to that? 
I had relatively little dealings with Justice but I did work with a 
staff member who is not with us anymore that was over at the De- 
partment of Justice trying to gather information. 

The Department of Justice, I think, is one of the great obstacles 
in the Indian Affairs, particularly in litigation and getting legal rights 
recognized. I know you had your own problem with them on the 
Menominee Reservation with respect to whether or not Menominee 
was within the coverage of Public Law 83-280. 

The Department of Interior took the position that Public Law 280 
did not apply to your reservation and the Department of Justice 
refused to acknowledge that position. That I cannot understand. 
The Attorney General of the State of Wisconsin was sufficiently 
supportive of your position that Wisconsin, as I understand it, 
retroceded whatever jurisdiction Justice insisted they had. 



So finally, you gjt around the obstacle of Justice. Rudy Ryser, 1 
think I'm pronouncing that name correctly, was trying to find the 
groundwork for hearings, you know, to get to the subpena thing 
and bring some people up here that could respond to math is. 

Then Rudy went over to talk to ground level personnel because 
that's where the problems are known and if you can't talk to those 
people, you can't really find out what it is you need to find out and 
what you ought to be issuing subpenas for. 

It was an office below that of the Attorney General, a Deputy 
Attorney General or something, got wind of the fact that Rudy was 
talking to these people and insisted on having a representative from 
his office, a political level appointment, sit in on every interrogation 
or question period. 

Obviously, a chilling effect because no low-lewl guy is going to 
reveal the problems of his department or he's going to find himself 
stationed in Sitka, 3'ou know, it's that simple. There are many prob- 
lems. There were substantial problems out of the Department of 
Justice. 

We had a situation that we discovered in Oklahoma. It was the 
Larry Black, Jr. case where this young Indian boy was arrested by 
local police and after about 2 weeks, psychiatric evaluations were — 
you know, there were no suicidal tendencies found in this kid at all. 
He was looking forward to getting out then and he's found hanging 
in his jail cell. 

The parents obviously were just distraught and tried to get FBI 
cooperation in at least take a look at this thing to find out what had 
happened because the}^ didn't believe it was a suicide. There was a 
very bad problem in getting the FBI to investigate this. In fact, I 
don't think they ever did do it until it w T as obvious this Commission 
was beginning to bring pressure. 

Chairman Abourezk sent a letter to the Attorney General asking 
for a full explanation of that case and the policies and procedures 
followed by the Department of Justice in investigating these kinds of 
cases. This was another instance where we were preparing to issue a 
subpena because the response from Justice was delayed and delayed. 

We finally did get a response just about the time we were prepared 
to come back to Senator Abourezk or Chairman Meeds and ask to get 
subpenas issued. We've had delays out of these agencies but — have I 
answered the question that you're asking? 

Commissioner Deer. I want it in the record, some comment about 
the Department of Justice. I would just also like to say that I feel our 
time was short and I was very interested to learn that during your 
6 years, Senator Abourezk, no subpenas had been issued but I feel 
that we have had this power and I feel some distress in not being able 
to call before us the responsible official. 

I realize we are in a change of administration and that new people 
will be coming in and I think it's unfortunate that we're not going 
to be able to call in the people that have been administering these 
policies and causing these problems. 

Mr. Taylor. I would like to make a suggestion here that Don 
Wharton just whispered in my ear and I think is very good. The 
lifetime of this Commission is not over yet. The power to issue sub- 
penas is still with it. We're in the process of putting together a final 



153 



report here. I tliink we can lay out areas of information that, pre (lave 
either sought or believed at tnis point should be sought, people that 
we feel this Commission should talk to and if it requires a subpena 
to get them up here, then that's what would happen,. 

I believe we can lay out a program for interrogation and investiga- 
tion at this point. My political inclination is more or less with Senator 
Abourezk. I think we ought to be getting the new politicians up here, 
the ones that are going to be shaping these policies for the next 4 
years along with the underling civil servants that are the ones that 
really have to answer these questions. 

So I guess what Fm suggesting is that we put together a package 
for you that you can consider. 

Commissioner Deer. I would be very much in favor of this and I 
would like to see this. 

Congressman Meeds. Mr. Chairman, let's go back to the recom- 
mendations on page 52. In the middle of the page, it says: 

Congress should amend the Indian preference legislation to extend Indian 
preference to all Federal agencies which so recently have assumed the role of 
administering programs and services for the benefit of Indians. 

What is the rationale behind that recommendation? 

Mr. Stevens. I wanted to say one thing and that is that I'm not 
too sure a new law is required but it is what was recommended. The 
reason I say that is because in the 1934 hearing, that specific area was 
addressed by one of the Congressmen or Senators who said: 

If you put those particular words in there, you have to remember that there is 
just the Bureau of Indian Affairs. Or are you going to refer to all the rest of the 
agencies? 

The answer was yes. 

It was the same way in the budget sections where they were con- 
sidering the budget process. 

Congressman Meeds. What I'm asking is this: Are you suggesting 
that this Commission recommend legislation which will carry that 
recommendation into effect? If so, why are you recommending that? 

Mr. Stevens. I think I would emphasize that recommendation 
particularly on reservations because I believe Civil Service does not 
and has not ever taken into account some of the very special qualifica- 
tions needed to work with tribal people. 

Many times, tribal people are excluded from BIA positions in which 
they are much more qualified than non-Indians but the Bureau follows 
the Civil Service criteria. 

Congressman Meeds. But your recommendation is not limited to 
what you are now explaining. You're sa}dng all Federal agencies 
which are administering programs and services for the benefit of 
Indians should be subject to Indian preference. That includes Justice, 
Commerce, HUD, and agencies on down the line. I think you identified 
some 87 Federal agencies that are administering programs that in 
some way, at least presumptively, benefit Indians. 

Now, are you suggesting that an Indian preference akin to the Indian 
preference which applies to BIA and at least through court interpreta- 
tion, IHS and others be applied to all of those agencies? 

Mr. Stevens. Yes, sir. 

Congressman Meeds. Now, what's the rationale for it? 



154 



Mr. Stevens. It's for some of the same reasons. I think there are a 
eouple of things. One of them is that employment in the Federal service 
is a substantial contribution to economic development. Another thing, 
is it's control of real estate. In other words, it's a matter of controlling 
our own turf. Indian preference in itself, it's not a 

Chairman Abourezk. Would you yield? 

Congressman Meeds. Yes. 

Chairman Abourezk. We're not clear as to whether you mean like 
in HEW, the Indian desk, or you know, in HUD, the Indian desk or 
the entire department. What are you talking about? 

Mr. Stevens. We're talking about the Indian department-, the, 
ones that deal specifically with Indian reservations. 

Chairman Abourezk. If I might go just one step further. Is there 
somewhere in here where you were recommending, for example, the 
Indian desk in Commerce, in 11UD and all those people put into the 
BIA or should they remain separate? 

Mr. Stevens. 1 think that should be a part of the development of 
the text. It's a part of the discussions leading to a possibility of a 
separate agency. Chuck Peone and Ray Goetting — were trying to 
figure out what a separate agency for Indian affairs meant and they 
discovered about 20 different variations. 

Now, one variation is to combine Indian Health Service, BIA, parts 
of Interior, parts of Justice, possibly an Indian trust council and so 
on into an Indian agency that would specifically handle primarily 
threshold trust activities and services extended by BIA and Indian 
Health Service. That would be one part. 

The other parts of the Federal agencies might operate separately 
or they could be a part of the Indian agency. I personally think that 
EDA ought to be in the Bureau. Although I shudder to think how 
they would handle it. 

Congressman Meeds. Don't you think that recommendation then 
ought to be amended to show that preference should be extended 
within those agencies to those positions which deal specifically with 
the Indian programs, rather than to all positions in all agencies? 

I read the recommendation as affecting all positions in all agencies. 
That is what brought my question to the floor and the chairman's 
question obviously limited that. With that limitation, I clearly don't 
have the kind of problem I had with it before. 

Air. Peone. 7b of 638 uses the same approach in contracting and I 
believe in contracting, we get more involved with the issue of Indian 
preference and services and benefits for Indians. There are several 
other programs besides BIA and Indian Health that deal with Indian 
affairs and that impact on Indian reservations. 

Under 7b, we have a section that deals with contracting, sub- 
contracting grants from all agencies that have Federal domestic 
assistance 

Congressman Meeds. I don't have any problem with that. Indeed , 
I think probably it's preferable, but I don't think the entire agency 
should be encumbered by an Indian preference. So I would ask, Mr. 
Chairman, that it be made abundantly clear that it's only with regard 
to those positions winch are dealing primarily with Indian positions, 
problems, contracts or whatever. 

Chairman Abourezk. I would agree with that. John? 



155 



Commissioner Borbridge. [ would like to commenl with respect 
to that statement, I'm sure, that we all pretty well accept the follow- 
ing: As we seek to implement this motion in the manner advanced by 
Congressman Meeds, it would be very clear, in recognition of earlier 
statements made by Mr. Stevens, that we would insure, to the extent 
possible, that Federal agencies would not be seeking ways to circum- 
vent this by farming out some of the responsibilities to Federal sub- 
agencies that are not ostensibly in the Indian business. 

And further, there are quantities of money which are evidently not 
being funneled through specifieall3 T identified Indian desk> or like 
agencies. Having had some experience with the bureaucracy, I suggest 
that it would behoove us to be aware of this so that our intent i< 
fulfilled rather than circumvented. I know this is going to be a Lengthy 
process. 

Mr. Stevens. There is something in 7b I think the subcommittees 
themselves ought to deal with whenever they get a chance. We were 
thinking about forwarding the results and asking the subcommittees 
to act. Senator Abourezk sent a letter to all the agencies reminding 
them that 7b of the act applied to all agencies. In reply, in very nice 
pleasant language, they told us to stick it in our ear. Now they are 
removing projects from the area of contracting where it calls for 
preference and substantial Indian subcontractors. 

They're putting criteria and requests for proposals. The RFP's 
of a Defense Department nature. By that, I'm talking about the 
nature of how the request for proposal is laid out. It requires that you 
have a large company in which you have the personnel necessary on a 
permanent basis and so on and so forth; that coupled with the fact 
that these agencies have also begun to say that if an Indian company 
or organization is not located on a reservation or if they are an urban 
outfit, they don't receive preference. So the agencies are successful^ 
able to ace out even Indian contractors in Kapid City. Rapid City 
is substantially part of the Rosebud-Pine Ridge situation and yet 
an Indian person could be living on the reservation but if his company 
is located in Rapid City, the agencies take the position he's an urban 
Indian. So Indian contractors can't build houses, they can't do 
architectural plans and so on. The Federal departments are retrench- 
ing and using other devices to circumvent this new law. 

Commissioner Bruce. Mr. Chairman, I'd like to go back to some 
personal experiences that I had with the then CIO and now here's 
another event to try to get the agencies to cooperate more where 
Indian programs are involved. I attended three meetings, I don't 
know whether anyone is here who was at those meetings but nothing 
came out of it, nothing. Not only that but there wasn't a single Indian 
outside of myself attending any of those meetings at all and I had no 
voice in it. I was just invited to come along. 

If any of us — and I have worked to get at least in the Indian desk, 
I know that most Indian desks are — -they have a nice desk and a 
chair, if they're lucky and they don't do anything — they just sit 
there. It took us, I don't know, 15 years to get an Indian over in the 
Agriculture Department sitting at that desk without a chair, 3011 
know, and we're just beginning to move. 

So I would say that this recommendation here is a start. That if we 
can urge them to put in people who are Indian, use the preference 



156 



tiling in agencies, then that's a start. I hate to limit it there. I would 
like to have it go through the whole agency but if we can start there, 
then we've made some progress. 

Just like I think the administration and the White House call indi- 
cate its preference for Indians or at least let us know that they like us a 
little. Unless they put an Indian in that White House and I don't 
care what he does but just let him sit in there, that we know he's 
there, we're pointing at that sort of thing. 

That's a start and I think an}' administration, I wouldn't be sur- 
prised if this new administration will do just that. But I go along 
with this idea of having it applied to agencies where we do have 
Indian programs. 

Chairman Abourezk. OK. Ernie, I think what I'm going to have to 
do — let me try to do some scheduling of the subjects. We're now 
getting a tendency to breakdown and bog down somewhat on some 
issues and I don't want to demean the importance of all of these issues 
but how many days of meetings do we have left scheduled for this 
week — Monday and Tuesday? 

Mr. Stevens. Monday 

Chairman Abourezk. Only Monday? 

Mr. Stevens. Yes, sir. I would like to say that we probably can 
handle the remaining subjects on Monday. 1 don't see why not. Or 
else, at the next session, we could cover the remaining parts. I have 
a memo which I'll have Ernie distribute. 

If we cover through chapter 7 or even up through chapters 8, 9, and 
10, it's going to be all we can do to prepare a text for you by the next 
Commission meeting and so 

Chairman Abourezk. But I mean we're going to run into time 
difficulties, aren't we? 

Mr. Stevens. Well, at the next meeting we can finish our agenda. 
In one particular area, I think it's in chapter 8, I made a 
recommen d a t ion . 

You see what we've basically been able to do is assemble all the 
task force opinions and put them in context, evaluate them and so on. 
There are great big gaping holes in our sections on economic develop- 
ment and natural resources. 

Chairman Abourezk. In the task force material and in ever}' other 
kind of material, and what I asked for in that particular instance is to 
put that off until the next meeting because it's a tragedy; that par- 
ticular subject ma} 7 be one of the most important ones. 

All right, now what is the chapter 15 in general? What do you 
intend to cover in that? 

Mr. Alexander. There are three parts to that chapter. The first 
part is something we discussed very briefly yesterday which is the 
general lack of knowledge about Indian affairs, Indian legal status by 
the U.S. population and particularly among those people who work in 
Indian affairs at the State and Federal level. 

There are some general education- type recommendations. The 
second part of it comes from the Commission's organic legislation 
which requires a consideration of alternative elective bodies and that's 
a very short section. 

The third part of it deals with task force 9 in to to which is a revision 
and consolidation of 25 U.S.C. and essentially what we recommend 



157 



there is that because it's such a complex area, that the report be 
submitted in toto to the appropriate committees with a recommenda- 
tion for continuing work on the subject based on the work done by 
task force 9. 

Chairman Abourezk. All right. If we're only going to meet to- 
morrow. What about extending the meetings this week 1 more day? 
Will we be able to do that? Do you have enough material for us to do 
that? 

Mr. Stevens. Sure. 

Chairman Abourezk. How does the Commission feel about meeting 
again Tuesday? 

Commissioner Bruce. I'm all for it. 

Chairman Abourezk. Does anybody object to it? 

Commissioner Dial. I could have met Tuesday if I had known. 

Chairman Abourezk. I see. In other words, you're unable to come 
Tuesday. 

Commissioner Dial. I have a couple of classes Tuesday morning 
and I made no preparation for anybody to take my place. 

Chairman Abourezk. We still would very much like to have your 
presence here. 

Commissioner Dial. I believe we could finish all of this tomorrow 
if we didn't kill so much time. 

Chairman Abourezk. We could try, I'm not sure we can't. We don't 
want to unnecessarily restrict anybody in their debate here or their 
questioning and so on. 

I'll tell you what. We're going to have to finish Federal delivery 
today come hell or high water and we ought to try to — that leaves 
Pete's areas tomorrow and if we meet at 10, that w T ould leave less 
than an hour for each area tomorrow. 

I'm not sure. What does the staff think about that? 

Mr. Alexander. Mr. Chairman, one of those areas, chapter 9, is 
quite a large and extensive chapter which deals with health, education, 
corrections, each one of those subjects probably could take an hour or 
so. So it is very likely that 1 day would not be sufficient for a full 
discussion of those eight remaining chapters. 

Chairman Abourezk. Well. Adolph, what if we took up chapter 12, 
nonrecognized Indians, first thing tomorrow and if you couldn't make 
your arrangements for Tuesday, at least you would have one of your 
major interest areas out of the way? 

Commissioner Dial. Would you also deal with 9? 

Chairman Abourezk. W^e could do both of those tomorrow and 
leave resources till a later hour or a later day. 

Commissioner Dial. I'll tr} r to stay. 

Chairman Abourezk. I understand. We'll have to — I think in 
order to get our work done here, we're going to have to set some sort 
of schedule though because we don't have all the time in the world and 
we spend an awful lot of time and rightfully so, on the areas that we 
have covered the last couple of days and today. 

All right, let me see if it's all right with the Commission to do this. 
We'll finish Federal delivery today and we'll try to move through this 
as quickly as possible. If the staff could be responsive to the questions 
of the Commission, if the Commission would be cooperative in asking 



S2-749— 77— vol. 4 11 



158 



only necessary questions on all of the subjects, 1 think we can go very 
rapidly there. 

Tomorrow morning, the first subject will be nonrecognized Indians. 
The second subject will be social services. Will you change the schedule 
to read that? 

Mr. Stevens. Yes, sir. 

Chairman Abourezk. Then we'll go right bark on schedule again 
and try to finish the rest of those off. If we haven't finished them/, 
let's meet again Tuesday and until we finish all of those areas. 

Congressman Meeds. Mr. Chairman, I'm delighted to see a member 
of the other body adopting the rules of the House which means that 
all things need be pertinent and relevant to the discussion before us 
and that all responses must also be pertinent and relevant to the 
questions. 

Chairman Abourezk. I'll accept that criticism. 

Congressman Meeds. No, it's a commendation. 

Mr. Stevens. Mr. Chairman, could I move to page 15 of chapter 7? 

Chairman Abourezk. Ernie, before you do that, we have one other 
matter — procedural matter to take up. There was a suggestion yest< r- 
day that we extend the time for the filing of the report and I think we 
had better deal with that today. I also want to notify the Commission 
that I have extremely essential business that I have to conduct in 
my own office tomorrow and i 'm only going to be here part of the day. 

I don't like to do that but I've been out of the country for two weeks. 
I have not yet had a chance to go and take care of my business there, 
so Vice-Chairman Meeds will conduct the hearing of the meetings 
tomorrow and that's why I think we probably should get this other 
matter out of the way today about extending the life of the report 
itself. 

We have to talk about this markup schedule right now, so let's 
try to do that. 

Ernie, in this memo you are recommending that we do not have the 
December 17 meeting, is that right? 
Mr. Stevens. Yes, sir. 

Chairman Abourezk. That instead we have it in early January, 
the 6th and 7th? 

Mr. Stevens. Or the 13th or 14th. 

Congressman Meeds. Is that premised on an extension? 
Mr. Stevens. No, sir. 

Congressman Meeds. If there is not an extension, would you still 
recommend that? 

Mr. Stevens. Yes, sir. 

Congressman Meeds. How could we possibly finish that? 

Mr. Stevens. We'll just have to have another meeting in January 
and another one in February. 

Congressman Meeds. Refresh my recollection now. The date that 
this report is to be filed is when? 

Mr. Stevens. Februaiy 18. 

Congressman Meeds. And that's mandated by law? 

Mr. Stevens. Yes, sir. 

Congressman Meeds. Februar}^ 18th? 

Mr. Stevens. Yes, sir. 



159 



Congressman Meeds. And the suggestion of not haying a meeting 
in December is based on the fact that some members can't attend? 

Mr. Stevens. No, sir. It's based on the fact that we are required to 
supply you the materials 2 weeks in advance of the meeting and by 
the time we finish this meeting, we'll be about 5 or 6 working days 
away from that date and we have to supply you with a first draft of 
the written report, the conclusions and recommendations. We phys- 
ically could not do that. 

Chairman Abourezk. All right. In order to extend the time for 
filing the report, it needs a legislative amendment to the original net, 
right? 

Mr. Stevens. I'm not sure but I think you probably would have to 
amend the legislation. 

Chairman Abourezk. Well, if we don't file it on time without an 
amendment, it means all 11 Commission members will get busted for 
violation of the law so may I recommend to the Commission, that we 
follow this new schedule that you set. If we set the meeting for January 
6 and 7, that will give you enough time to get the draft in, right? 

Mr. Stevens. Yes. 

Chairman Abourezk. And that we, at that point, talk about 
whether we have to extend the time for filing of the report. We can't 
do anything about it now till the legislative session starts anyhow 
because we're going to have to submit an amendment. 

Adolph? 

Commission Dial. Yes. I was going to say that when we extended 
this the last time, you recall Kirke Kickingbird said that we could 
extend 1 month without any legislation. 

Chairman Abourezk. We did that. 

Commissioner Dial. Right, we did that and if he's correct, we 
would have to have legislation. 

Chairman Abourezk. Yes, I think it's the key to the filing of the task 
force report. What is it, 60 days from the last filing of those, or 30 
days? 

Mr. Stevens. Six months. 

Chairman Abourezk. All right, so we're right on the dates. We 
have to file Februar}^ 18 unless it's changed legislatively but we're 
still in the time frame if we set those meetings in January. Then we 
have to set additional meetings in January or early February in order 
to get the final draft approved, right? 

Mr. Stevens. Yes, sir. 

Commissioner Bruce. Ernie, is that on Friday and Saturday, the 
6th and 7th? 

Mr. Stevens. No one has suggested that we do 6, 7, 13th, or 14th 
and those are Thursday and Friday. It could be on Friday and Satur- 
day, whatever you want to do. 

Chairman Abourezk. Well, Sid Yates w T ants those dates, doesn't 
he, and we would like to have Sid come. 

Mr. Stevens. Yes, sir. 

Commissioner Bruce. Is that the 13th and 14th? 
Chairman Abourezk. No, 6th and 7th. 

Commissioner Whitecrow. The 6th and 7th, is that dispensing with 
our meeting date we have scheduled for the 17th and ISth of 
December? 



160 



Commissioner Dial. 6 and 7 is not Saturday; 9 and 10 is Friday 
and Saturday. 

Chairman Abourezk. Does anybody have a calendar? 

Commissioner Dial. Yes, I just looked at one before I came up 
here. Your Fridays and Saturdays are 3d and 4th, 9th, 10th, 16th, 
17th and 30th and 31st. Of course, I'll come any time. If you want 
another 6th and 7th, I'll be here. 

Chairman Abourezk. Let me restate it. We will not have a Decem- 
ber meeting. We will have our meeting on January 6th and 7th to 
approve the first draft of your report. At that time, we will set an- 
other date for approval of the final draft. 

Commissioner Dial. Set it when? 

Chairman Abourezk. We'll set it on January 6th and 7th. 

Mr. Stevens. Mr. Chairman, why don't you just say at that time, 
we'll set the next meeting. 

Chairman Abourezk. That's right, that's what I said. 

Mr. Stevens. No, you said the final approval. See, we could finally 
approve that the second week in February or something, but between 
the 7th of January and F ebruary 18th, we could have another meeting 
if necessary. 

Chairman Abourezk. All right, that's fine. Is that agreeable with 
everybody? Does anybody have any problems? 

Commissioner Dial. We're meeting the 6th and 7th, right? 
Chairman Abourezk. 6th and 7th. 

Commissioner Whitecrow. The thing that I'm concerned about 
here is whether or not we are going to have enough time that if it is 
necessary to request an extension of time before submission of our 
final report, will we still have that final report completed by the 18th 
of February so that we would have time to get that report out to 
Indian country so that they could review it? Will that give us time 
to do this? 

Mr. Stevens. W r e can complete the report by February 18th. I'm 
trying to keep these two things separate. 

Chairman Abourezk. Ernie, that's another question. I'm glad Jake 
brought it up. If we approve the first draft on January 6th and 7th, 
that's the time the report should be mailed out to Indian country. I 
mean, it's not going to do us much good to mail a final report out 
because it's finally approved and to get the feedback from Indian 
countrv so we can make corrections in the final draft according to 
the - 

Mr. Stevens. Let me say this about that. 
Chairman Abourezk. All right. 

Mr. Stevens. I have a problem. We're in trouble with some of our 
own people. By own people, I mean task force members as well as 
some of the tribes in that we haven't distributed task force reports. 
Just the idea of taking a first draft and completing it will be one 
thing. Distributing it will be another. 

There isn't any way possible that we could distribute a first draft 
for February 1st. It's physically impossible. 

Chairman Abourezk. All right, then we're going to have to get 
an extension of filing of the report. There seems to be no choice. 

Congressman Meeds. Well, Mr. Chairman, that of course is 
premised on the fact that we would distribute the report or the 
draft or whatever prior to accepting it. Now, I don't know that I'm 



161 



opposed to that but if we do get it, I think it oughl to be a first draft 
rather than a final report because it's meaningless to distribute the 
final report and ask for comments on it. That's an exercise in 

Chairman Abourezk. We've already agreed on that. 

Congressman Meeds. Secondly, 1 think we, as Commissioners, 
ought to ask some very serious questions about whether it ought to 
be distributed. Again, I say I don't have any great preference on th ; s 
but we have set up this Commission in such a way that five elevenths 
of the Commissioners are Indians. In addition, I think about 90 
percent of all the personnel on the task forces were Indians. 

Also the task forces have conducted hearings in Indian country 
and the Indian people were heard from to a much more considerable 
degree than anybody ever thought they would be. I want to go on 
record as indicating that I think we've already had a great deal of 
Indian input and if we are going to tie ourselves in some way to 
making changes which are suggested from the circulation, I at least 
want to be on record as saying I'm going to be a little chary about 
that. I think we've done a pretty good job of getting Indian input 
already. 

So I just want to notify the members of my personal feeling on 
that. 

Chairman Abourezk. I would like to speak to that just briefly. 
I think it's essential for the credibility of the report with the Indian 
community that the draft be distributed to the Indians to ask for 
their comments on it. Then we can take our action after that whether 
or not we know ahead of time we aren't necessarily going to agree 
with everything the Indian community says. We might, but it's 
hardly likely that there will be 100 percent agreement. 

But I think people have to be given a chance to speak on it and I 
would support distributing the first draft of the report. 

Mr. Stevexs. Air. Chairman, I'm sorry, excuse me. 

Air. Borbridge. In line with our new guidelines, very briefly, I 
absolutely concur. I think the Commission has come very far in 
gaining added credibility and support. I think that the distribution of 
the draft report would really nail that down and I think it would 
also be of considerable assistance to us when we start to consider 
recommendations. 

Air. Whitecrow. I agree. 

Air. Dial. Air. Chairman, I fall somewhere in between Congress- 
man Aleeds and Senator Abourezk. I believe it's fine to distribute 
the report in the Indian world and let them see what you have. Get 
the comments so far. 

But you have to keep in mind that this study is finished and it was 
made by task force members and only minor recommendations can 
come in. You cannot come in with I shall not vote for any major 
recommendation from any place if they are major and they differ 
from the task force reports. 

Otherwise, we've spent 1 year here for nothing. That's why I say 
I come in between the two of }^ou there. If we're going to open up a 
can of worms of hot debates in arguments and a whole lot of other 
things that might come up, then" it would have been better to — 
that we should go on as we are. 

Let's face it, such organizations as the national Congress, they 
know what we're doing. They're keeping up with us. They've seen 



162 



the report, they've read the reports and I want to make it clear that 
I am not supporting any major changes. 

You have to keep in mind, too, the task force reports stand and of 
course, what goes to Congress is something else. But I would hope that 
recommendations from Congress — I mean to the Congress are going 
to be based largely on the work of the people who did the task force 
reports. 

Otherwise, we are spinning our wheels and playing the game of 
first graders and I don't intend to play that game. 

Mr. Whitecrow. Mr. Chairman, I would like to speak to this issu€ 
also. I think it's absolutely essential that the Indian world out there 
have an opportunity to view the entire draft of the reports. Certainly, 
our task forces have done their job and the credibility of those tasK 
forces is recognized. 

We also must realize that the Indian world must have an op- 
portunity, if we have credibility as a Commission, to speak to those 
recommendations that we are going to be making. At least the In- 
dian world will have an opportunity to see what the issues are and 
then they will be looking at us as Commissioners to determine how 
we vote on those major issues and then they would be able to see how 
the Commission worked and how it functioned in its final prepara- 
tion. 

I believe we will have support from the Indian world in this and 
perhaps finally, once and for all, unifying the Indian 

Mr. Deer. Mr. Chairman, I think this would be in line with the 
policy of consulting with the Indian people and also, often in the 
past major policies and programs have come down as a surprise to 
the Indian people and I think this would be in line with setting a 
whole new tone, a whole new relationship with the Indian people of 
this country, by sharing the report before the final draft is concluded. 

Mr. Bruce. Mr. Chairman, I just want to point out here and I 
agree that the report should be sent out even though from the urban 
standpoint, the urban centers, I was quite annoyed at the fact that 
we sent out a lot of questionnaires and got a minimum of response. 

We sent out questionnaires to urban centers and got a minimum of 
response. Now they want a big meeting and I want them to know 
I'm in a position to make some recommendations on this now but I 
didn't get help from the urban center people. 

But I want that report to go out and let me tell you another thing. 
Who is going to help us with Congress and so forth but our own people 
and we want that help and they need to know what's involved here. 
So we can't go out and say we need your help to do thus and so. 

Mr. Meeds. Mr. Chairman, during the course of the hearings and 
studies by some of the task forces, I had a lot of correspondence from 
people other than the Indians who felt that they did not have an 
adequate opportunity to present views at hearings. 

Now, whether that's true or not, I'm not sure. But in any event, I 
think that the proposed draft, if it is to be mailed and sent and dis- 
tributed, ought to be sent to people who might disagree with it, 
rather than just to Indian country. 

Chairman Abourezk. You mean like some of the rightwing 
groups, anti 

Mr. Meeds. I don't prefer to describe them as rightwing groups 
but as people who felt that they didn't have an adequate oppor- 



163 



tunity to be represented in the actual field hearings, T think that we 
should also get comments from them. 

Chairman Abourezk. We've got a group of neo-Ku Klux K Ian- 
men out in South Dakota I would like to send the report to. 

Mr. Stevens. Mr. Chairman, the Indian people want to be able to 
read and review and comment on the task force reports and they 
have not been published yet. 

Chairman Abourezk. Well, through no fault of the Commission. 

Mr. Stevens. Yes, but if we are able to publish those task force 
reports and distribute them, we could get comments back which would 
help us in the deliberations. 

Chairman Abourezk. Well, Ernie, there are a couple of physical 
restrictions to that. First of all, those are voluminous, the task force 
reports. The final report will not be that voluminous. It will be easier 
to distribute and will be in fact a final statement and it might be far 
preferable just to mail a draft of the final report out for comment 
because it's not the task force reports themselves. 

There will be the recommendation to Congress, it will be the final 
report that will be the recommendation to Congress. What do you 
think? It will be easier to do. 

Mr. Dial. Mr. Chairman, Mr. Stevens, I have a question. Ernie, 
did you get very much cooperation when you asked for the various 
reports from organizations and tribes and so forth to become part of 
the study? 

Mr. Stevens. Yes, as a matter of fact, up until now, the Indian people 
and tribes haven't been very responsive. We only have a few reports 
but they have far exceeded anybody's expectations. In support of 
Commissioner Bruce's statement, over a year ago, we requested all 
tribes, all organizations, all urban organizations b} r personal letter from 
the Senator and me, to submit reports to us. I would like to have 
hearings for those tribes that did submit reports ; tribes like the Crows 
and Northwest Affiliated and other such. They put together very 
substantial reports. If there were a hearing, I think these tribes ought 
to be heard on the basis of the reports they submitted. 

Mr. Dial. To the Chairman and to Ernie, how do you expect to 
make available the comments that come in after you mail the final — 
well, not the final report but after you mail the drafts to the Indian 
world? Some way you need to make this available to all the task 
force members, Ernie, each one and the specialists who took part in 
the study. Because this is very necessary so they will know what 
comments are coming in on their particular topic. 

Chairman Abourezk. Well, I don't know, Adolph, whether that is 
entirely feasible to call back in the task force group. 

Mr. Dial. I didn't say call them back in. I said to mail to all the 
task force members a copy of an}' comment that relates to a particular 
task force because if we, as a Commission, pass something to become 
law, I mean which may become law when it goes to Congress, then I 
feel that the task force members need to know this, you knew, and 
say, well, you know, I've never heard this before and we say, well, if 
this came out as a result of the draft that went out, you see, they 
need to be acquainted with this at all times as a matter of respect. 

Chairman Abourezk. That doesn't bother me at all. Just mail it to 
them. 

Mr. Dial. Yes; but I want to make it clear that I want to make a 
motion to this effect that we do this. 



164 



Mr. Meeds. Mr. Chairman, could I try to put in some kind of 
framework — a method which I think we ought to follow. I'm not cast 
in cement on it but I think first of all, we ought to mail to all inter- 
ested parties, both Indian and non-Indian, a proposed first draft. I 
think we ought to set a time during which the people who receive it, 
and anybody else, can consider it and make written comments to the 
Commission, not to the task forces. 

Obviously, the task forces' work is done with the submission of 
their task force reports. The Commission, with its staff as presently 
constituted or others that they might wish to bring in, must discuss 
and make a disposition of the comments which are received. Some of 
them, we may want to accept and to put in a final draft, others we 
may wish to reject. 

However, we should take up the suggestions at least in a general 
framework. We don't necessarily have to consider every single one. 
But we should group them into categories so that all comments are 
handled, and I think we should specify in the final report how we've 
handled or disposed of those comments so they are meaningful and so 
that people will know their comments have been considered in our 
final report. 

Perhaps we could have a special section on disposition of comments 
received set forth in the final report. We then issue our final report 
which will be primarily the task force reports, what we've adopted 
from the task force reports, the comments of the public generally, the 
disposition of those comments, and the final distilled product. 

Mr. Abourezk. Will you put that in the form of a motion — that 
what I've just said 

Mr. Whitecrow. Mr. Chairman, whatever he just said, I will 
second. 

Mr. Abourezk. All right. A motion has been made and seconded. 

Mr. Meeds. Mr. Chairman, I move that the following procedure 
be generally followed subject to changes for the convenience of mem- 
bers and subject to dates and time frames established in later meetings. 
I move that on a certain date, we will have prepared and accepted by 
the Commission, a draft of a final report. 

It must be clearly understood that this is not the final report, 
but only a suggested final report. This draft should be circulated to 
the Indian and non-Indian groups who, as we can best ascertain, are 
interested in studying the report and making comments. 

A time frame should be established during which those comments 
can be made in writing. At the end of that time frame, after prepara- 
tion and categorization of these comments by staff, the Commission 
should meet and consider the comments and suggestions that have 
been made from interested parties. We can dispose of those in some 
fashion by vote. 

Also, within a certain time frame thereafter, a final approved 
Commission report will be made which takes into consideration the 
work of the task forces, the Commission input, all the hearings, the 
comments on the draft report and disposition of those comments. 

Mr. Abourezk. Is there a second? 

Mr. Dial. Mr. Chairman, I second the motion and I feel, Ernie, 
that you need a memo with this motion in order to pass it out to 
anyone who wants it because that's very good and takes care of 
anything. 



165 



Mr. Abourezk. There's a second. All those in favor will say aye. 
[Chorus of ayes.] 

Mr. Abourezk. All those opposed? No? The ayes have it. Let the 
record show that a quorum being present of seven members all voice 
voted in the affirmative. No opposing votes. 

Mr. Borbridge. Mr. Chairman, a matter of information. Would it 
be possible to have this sometime before we adjourn? J think it's 
such an important element in our process and I think it's going to 
meet with a great deal of support and sympathetic reception. 

Mr. Abourezk. You mean the memo? 

Mr. Borbridge. Yes. 

Mr. Abourezk. We can have that tomorrow, is that right, Ernie? 
Mr. Stevens. Yes, sir. 

Mr. Abourezk. And it will be distributed to all Commission members 
tomorrow? The action that the Commission took today? 

Mr. Stevens. We could also put it in the form of an announcement 
to the audience. There will be a lot of people here tomorrow, and the}^ll 
be interested in it. 

Mr. Abourezk. OK. Now, let's get on — Jake? 

Mr. Whitecrow. Mr. Chairman, I might also suggest with the 
concurrence of the Commission members, that Ernie, we send out a 
communication through the news media of this at the very earliest 
so that people will accept it. 

Mr. Abourezk. We've adopted the management study and directed 
the staff to distribute the draft report to the Indian community and 
non-Indian community. 

We only have 45 minutes left so we had better get started. 

Mr. Stevens. Mr. Chairman, I would suggest that we go to page 
50, chapter 7. The reason is that it deals with 

Mr. Meeds. Mr. Chairman, could I just very quickly ask a question 
before we get off Indian preference? I don't recall all that I read about 
it in the management study but apparently there was some appre- 
hension among those members of the task force or the special manage- 
ment study about the whole question of Indian preference. 

Could you kind of enlighten us about what that apprehension was 
and how that will fit into the recommendations which are made here? 

Mr. Stevens. Yes, sir. I would like to have Kay Goetting and 
Chuck Peone talk to that except to say that there was a lot of dis- 
cussion among the participants and one of the things we all agreed 
on was that it was administered rather badly. 

Chuck, do you want to talk about what the problems were? 

Mr. Peone. The leader of that particular study group was from 
Labor Relations, a Labor Relations' point of view felt that basically 
Indian preference in the Bureau was very poorly administered, 
misunderstood and felt that by taking Indian preference and modi- 
fying it somewhat, he felt that we could do that under the present 
s}'stem. 

We felt that there was no appeal process in the Civil Service Com- 
mission for Indians other than the regular EEO complaint process 
and he didn't feel as a member of the task force that he had enough 
time to study the background of Indian affairs such as he utilized the 
Mancari decision basically and went along with the idea that Indian 
preference could be administered b} r a separate Indian career service 



166 



but felt that he did not have enough time nor enough background to 
promote that effort. 

However, he did say that the administration of Indian preference 
should be strengthened in the report. 

Mr. Meeds. Are any of the recommendations which you have 
made inconsistent with the findings and recommendations of the 
management study? 

Mr. Goetting. I might comment on that, Congressman. In the 
management study that we did in the Phoenix area, we had a former 
Civil Service Commission employee with us. The classification of 
positions is very difficult and it's extremely divided among the arras 
of qualification so that an Indian, when being considered, is actually 
disturbed about being the lowest minimally qualified, there are three 
levels of qualification being applied. 

They recommended that they use only one. That there be either 
qualifications or he would either be qualified or unqualified and that 
the standards are not being written to be applied specifically to it. 
So that when they do receive an application, a number of Indians 
won't apply because they are considered, they were only going to be 
considered, minimally qualified and therefore would be rejected. 

It's a very difficult demoralizing process and that's stated on 
page 35 of this report. That paragraph at the bottom of the page 
describes that and I might give } t ou an example. 

Assuming a college graduate requirement is needed, in the position. 
That may be minimally qualified and then they let people apply for 
it but then 5 3 r ears' experience, 10 years' experience makes minimum 
qualifications highly qualified a differential and then they have the 
opportunity to select the individual they want basically on the three 
levels of qualifications. 

This actually disturbs the entire operation. If they are going to 
require 10 years' experience, they ought to state it as the minimum 
qualification and then if the Indian has the 10 years' experience, he 
is equal and on that basis then, he would be eligible for employment. 

So that while they do this, circularization of all the rules, then 
fringe benefits and that sort of thing, need to be corrected. One other 
element actually exists in order to get cultural qualifications, under- 
standing, language considerations and the positions, they are forced 
to reduce the grade levels in many instances in order to get an Indian 
on the job where an Indian actually is required. 

Therefore, the lowering of pay, the lowering of prestige, the lowering 
of the job has a very detrimental effect on them. 

Mr. Meeds. Well, that is realty wlrv I asked the question because 
through the }^ears, in dealing with this, I've heard a number of crit- 
icisms of perhaps, not the law, but of the practice of taking a position, 
meeting certain requirements of that position, and of advertising for 
applicants. Then upon not finding any Indians who have applied, 
who are qualified, the position is downgraded. In some instances, 
hiring a non-Indian who may have applied and is qualified might 
make better sense. 

I don't think ai"^ of us believe, as a general rule, that downgrading 
a position is the best method for effective administration and maximum 
benefit to the population served. Assuming that certain qualifications 
are really required for a job, downgrading those qualifications so that 



167 



an Indian can fill that position when none has really come up to those 
standards is not a good way to operate. 

I am greatly in favor of the part of the report that says we ought 
to have an extended effort to qualify Indians and to really understand 
what qualifications are. I understand, or I believe that there arc tests 
which are given and qualifications which are sometimes required, 
which are not really as necessary as are some others. 

I don't mean to be setting anything in concrete, but I think, as a 
general principle, this Commission ought to be adopting the concept 
that rather than downgrading positions to meet people's qualifica- 
tions, we should be upgrading people's qualifications to meet the 
requirements of the best service. 

Now, is that somewhere stated in this? 

Mr. Goetting. Yes, it is. 

Mr. Meeds. As a policy that we want to achieve? 
Mr. Peone. Yes. 

Mr. Stevens. I would like to say, sir, that no matter what the slant 
was, everybody agreed that a better system of handling preference 
is needed. Another example that actually happened recently is the 
advertisement of a position in the Office of Personnel, that's a very 
exclusive area and takes special qualifications. So they advertise. 
They don't get anybody even though they've had qualified applicants 
apply. So they readvertise just so they can get an Indian person and 
when that happens, they turn around and blame the Indians because 
of preference and that's not fair. It's related to what you were saying. 

I think the Indian people are willing to concede that they want 
highly qualified people. A lot of tribal people do not want to be ex- 
perimented on even by Indians and so we agree with you 100 percent. 
We would underline that. 

Mr. Meeds. It's the old question of I don't want to be operated on 
by a brain surgeon. The qualifications are very questionable because 
the qualification level has been lowered to fit somebody else. I don't 
think Indian people or the Bureau of Indian Affairs, or any govern- 
mental agency policy ought to be doing anything other than qualifying 
people to meet positions, rather than lowering positions to meet 
people with qualifications of lower standards. 

Mr. Dial. Mr. Chairman. Chuck, how does Indian preference apply 
to the nonfederally recognized tribes? Would you comment on that? 

Mr. Stevens. I think Pete Taylor ought to do that. 

Mr. Dial. On Indian preference, Pete. Do Indian people who be- 
long to nonfederally recognized tribes, do they receive any Indian 
preference over, say a white person or a black person? 

Mr. Taylor. As the law presently stands, Commissioner Dial, 
under the 1934 Indian Reorganization Act, an unaffiliated Indian, 
meaning an Indian who is not a member of a federally recognized 
tribe, does qualify for Indian preference if he's half-blood Indian. 

Now, the question was asked a few minutes ago whether any recom- 
mendations in here deviate from that management sUuty or go beyond 
it. There is a recommendation on page 54 in this chapter that goes to 
the quarter-blood standard, which is what Ernie mentioned, and Mr. 
Whitecrow, I believe this is an area that a^ou would be very interested 
in. It's a subject that we could probably debate forever here today but 



168 



it's one I think wo need to refine our positions on and you Com- 
missioners need to be very aware of what we're doing here. 

As it is set out here on page 54, it's taken from the report of Task 
Force 9 and what we're proposing is — we have two proposals there, 
alternative proposals, for the Commission to consider and if 1 may, 
I'll just read them. I think it would be easier. 

Proposal No. 1 would provide that the membership class, the mem- 
bership in a federally recognized tribe and the descendant class of the 
IRA — and that is people who were living on a reservation in 1934 — 
should be amended to require a minimum one-quarter degree of Indian 
blood. 

We make no specific recommendations with regard to the un- 
affiliated one-half blood class. However, we suggest that Congress 
may wish to consider lowering the minimum blood quantum for 
unaffiliated and unrecognized Indians to one-quarter degree Indian 
blood. 

So if this recommendation were adopted, it would, No. 1, impose a 
quarter-blood requirement on people who are members of federally 
recognized tribes. That requirement is not there now. It would also 
add to unaffiliated Indians, reduce the blood quantum requirement 
from one-half to one-quarter. 

Of course, there is a second proposal here which springs off the 
first one. I think I should go on with the second proposal and then 
allow for debate. 

Mr. Dial. Well, what I'm really saying now, most people in Govern- 
ment are non-Indian; right? 
Mr. Taylor. Yes. 

Mr. Dial. You don't have enough federally recognized Indians to 
occupy the positions in Government. 

Mr. Taylor. Not all of Government but if we're talking about 
Indian delivery aspects of Government. 

Mr. Dial. All right, suppose you get in some other aspect, why not 
include nonfederal ly recognized tribes at least to come ahead of, say, 
whites and blacks? 

Mr. Taylor. In programs for Indian delivery services? 

Mr. Dial. No — in anything. 

Mr. Taylor. Well, because that, Mr. Dial, I would consider to be 
racial discrimination. 

Mr. Dial. It wouldn't be any more discriminatory than what you 
already have. 

Mr. Taylor. That's not correct. 

Mr. Dial. I don't think so. 

Mr. Taylor. My opinion is premised on a U.S. Supreme Court 
decision that Charlie Wilkinson mentioned the other day that says 
that Indian preference — I must admit, that Court was dealing with 
one aspect of this only, which was membership class — but it said that 
the preference policies derived out of a political relationship of the 
United States with Indian tribes and the Indian people. That's a 
very critical distinction. 

Now, if we were to open up all of the Federal Government and say 
people who are quarterblood Indian, regardless of political affiliation 
or anything else, have a preference over anyone else for a position, 
even in positions that are not related to Indian delivery services, all 
we w^ould have is an invidious discriminatory statute. 



169 



Mr. Dial. Would it be any more discriminatory than, say, veteran 
preference? 

Mr. Taylor. Yes. 
Mr. Dial. Why? 

Mr. Taylor. Because it's based on race. 

Mr. Stevens. Mr. Dial, there are a few things 

Mr. Dial. I understand this. You don't have to take any more time 

on it. I only wanted to bring it up for the record. You need not explain 

it to me, really. 

Mr. Stevens. I think it should be pointed out that the halfblood 
provision in the Indian preference law has not really been recognized 
nor has it been utilized. I suspect it has not been used but they are 
legally qualified to use it. 

One of the problems you get into in certain cases is that if there is 
no tribal roll and /or blood quantum, there isn't any way to identify 
an Indian and it's hard enough to get the Interior Department to 
identify a whole tribe of people. 

Mr. Dial. Yes, but they would come under the recognition that 
you mentioned here somewhere. I was looking at it a minute ago and 
you have five points of recognition. They could fall under two of those 
points, you see. 

Mr. Stevens. Yes, sir. 

Mr. Dial. And I don't see why they couldn't receive Indian 
preference in two of those five points of recognition." 

Mr. Taylor. As individuals as opposed to their tribes being 
recognized? 

Mr. Dial. Well, where the tribe is recognized. Let's speak of the 
Lumbees; I know that Lumbees have been denied Indian preference. 
OK. The 1956 Act of Congress recognized them as Lumbees but in 
the last sentence there was a disclaimer. 

I see no reason that a Lumbee should be denied Indian preference 
even if he comes in a second category to the federally recognized 
tribes. At least he should come ahead of whites and blacks. 

Mr. Taylor. Within Indian delivery service programs, I agree with 
you, Commissioner. 

Mr. Dial. Anything. 

Mr. Taylor. I agree with you and in fact, the District of Columbia 
Circuit Court agrees with you in the case of Mayner v. Morton. But 
it dealt with the eligibility of 22 Lumbees as Indians under the 1934 
act. 

Mr. Dial. Let's put this to the test on preference. Since the main 
thing is the Morton decision, OK, that's all. 

Mr. Abourezk. I just caught part of your conversation about 
defining an Indian. Is there a place where you absolutely define what 
an Indian is? It's never been really done on an overall basis in the 
law. Shouldn't we do that? 

Mr. Taylor. It's a definite problem. Now, we are proposing it in 
the context of preference for employment on page 54 here. 

Mr. Abourezk. What about defining an Indian in this section — a 
legal definition of an Indian for all purposes, not only for preference. 

Mr. Taylor. The parts of the report which I am familiar with do 
not propose a definition of an Indian for purposes of Federal delivery 
services and I would defer to anyone else that does know. 



170 



Mr. Stevens. I would just like to say something ahouf it. One of the 
things I think has to be continuously considered is the fact that I 
believe that a tribe should decide. 

Chairman Abourezk. That they decide on their own membership 
is what you're saying. 

Mr. Stevens. Yes, sir. 

Mr. Abourezk. Which is fine; I don't have any problem with that. 
What about somebody who's not living on the reservation? What 
about urban Indians? 

Mr. Stevens. It doesn't matter, in most cases. It doesn't matter 
in the case of members of federally-recognized tribes, for instance. 
There isn't any member of any federally recognized tribe that can't 
clearly relate back to either his tribe or the Bureau of Indian Affairs 
to specifically identify 

Mr. Abourezk. It's an adequate enough definition to say that if 
he's an enrolled member of a tribe, he's an Indian? 

Mr. Stevens. Yes, sir. In the case of non-Federal, let's take 
Passamoquoddy, for instance, it would have been unjust to say that 
until they won their recent court decision, that they were not eligible 
because they were not federally recognized. 

Mr. Abourezk. Let's assume that a tribe, if it's not recognized, is 
a tribe and that a member of that tribe is enrolled and can be defined 
as an Indian. I wonder if I could hear — I heard Louis Bruce over 
here. For want of a better word, it was grunty. 

I want to know if you will interpret that grunt word. 

Mr. Bruce. Well, I grunt because I would like a nickel for every- 
time I've been hit with, who is an Indian — the definition. I have 
really given some serious thought to it, and I can't come up with a 
definition. But, isn't it IRS that has the definition that an Indian is a 
person who thinks — who say says he's Indian, who is accepted by the 
community and what else? 

Mr. Taylor. Has substantial Indian blood. 

Mr. Bruce. And has substantial Indian blood without saying he's 
fullblood, half blood, quarterblood quantum. From the standpoint of 
non-Federal, that might be a good definition and they have used that 
right along. Dr. Johnson has. 

Mr. Meeds. Mr. Chairman, I think that somewhere, as a major 
recommendation of this report, we have to establish a process by 
which, No. 1, a tribe is recognized, and No. 3, by w^hich a tribe 
is given an opportunity and a time frame in which it describes its 
membership. In that process, I think certain blood quantums should 
be required. This would be much like the Alaska Native Claims 
Settlement Act where Natives were identified during a certain time 
period and everybody knew what the time frame and the require- 
ments were. 

After that time has passed, I think that the members of the special 
class should be limited. That is what we did in the Alaska Native 
Claims Act. I think it was a process which worked fairly well. John 
Borbridge can tell you a little bit more about it than I can. 

Like some of my Indian friends say, there are too many people with 
a braid and a bead out there posturing, who because of some distant 
relationship and the desire to find a place in the sun, have become 
instant Indians. They often aren't a real credit to Indians at all and 



171 



are merely taking that posture to gain the ends of their own self- 
aggrandizement. 

I don't think we can come right down to a definition of an Indian, 
but I do think there has to be a process which will limit that special 
class of people and I think that's got to be through the tribal system. 
Again, all of the special rights and benefits which we've been talking 
about here for 3 days now, don't run to individuals, but to tribes. 
They run to tribes. 

So I think that's a process that has to be utilized. There should be a 
process set up and some guidelines set up for that. 

Mr. Abourezk. Let me ask the staff: Should we recommend an 
enrollment or reenrollment process of tribes to provide them with 
assistance for that over a 2- or 3-year period? What's your recom- 
mendation? 

Mr. Goettixg. Mr. Chairman, the Commission actually assigned 
this problem to task force 3 and we looked into it. One of the problems 
that some of the tribes have, particularly in Oklahoma and the frac- 
tionated area activities, when that land that is inherited by minor 
blood-quantum individuals, their entitlement to ownership and that 
sort of thing, and I would not say any particular time — but until that 
problem is resolved to some degree, it would be difficult for a tribe to 
include or exclude any liability on its part in regard to an error and on 
that basis sometimes, we have a problem of actually deciding where to 
cut off. 

We ran into that problem. I just wanted to caution the Commission 
about establishing too short a period or at least turn this over to the 
lawyers to solve some of it. 

Mr. Dial. Congressman Meeds, you know, that was a wonderful 
statement if you had not mentioned blood quantums. I think when 
you mention blood quantums, that you would find man} r tribes who 
have been around for thousands of years but they would have difficulty 
in establishing blood quantum. 

That's the only trouble I have with what you said but that was a 
grand statement. 

Mr. Meeds. I want to clarify at least what I meant to say with 
regard to blood quantum. The way we handled this in the Alaska 
Native Claims Settlement Act, was to establish a blood-quantum 
process, but then another process by which tribes, in these instances, 
villages, could recognize other people as members of that group who 
didn't meet that blood quantum. 

That's the kind of situation I think which illustrates an auxiliary 
process where blood quantum is not the issue. 

Mr. Dial. I see. 

Mr. Bruce. I want to make it clear that I'm not against the system. 
I'm enrolled in two different tribes and I believe in the blood-quantum 
thing. I just say that when we're dealing with services, which is another 
thing, that we're going to have to face this issue of who gets services 
out there. And when we think in terms of how the urban communities 
accept Indians, that's another thing. 

Some will say, well, he's not Indian, he's not enrolled or whatever. 
Well, that isn't quite true but I'm not talking against the fact that we 
accept blood quantum as we have it now. I'm not sure that I think we 
said fullblood at three-quarters or one-half that is right. I think it 



172 



ought to be less. I go along with the one-quarter. So, we've got to face 
that and I guess that's coming up tomorrow whatever. 

Mr. Dial. I would just like to say that it appears that every depart- 
ment in government has their own definition of an Indian. 

Mr. Abourezk. That's why I brought up the question of should 
there be one standard definition and try to avoid this great big mixture. 

Mr. Dial. Yes; well, the only thing that's wrong with one standard 
definition, I could use the Lumbees as an example now, who receive 
perhaps something like $700,000 in IEA funds, at least I believe that 
was the approximate amount this year, yet the BIA has a different 
look at the Lumbees and those funds have been mighty useful. 

We've had Indians for many, many years, longer than most tribes in 
the country. Segregated Indian schools longer than most tribes in the 
country. Well, wouldn't it be terrible to have some kind of definition 
that would cut off IEA funds from the Lumbees? 

Mr. Whitecrow. Thank you. I've been wanting to get at this for a 
long time and I wanted to get my foot in the door here. Of course, I 
keep saying this. It's a primary area of importance but I think, Pete, 
with this particular recommendation that you have here, on establish- 
ing a blood quantum for Indian preference, I have some reservations 
here about the fact that if we should recommend to the Congress the 
establishment of some blood quantum as being eligible for even 
employment or for services, either/or, I believe in my opinion, I think 
we are really infringing upon the sovereign issue of a tribe. 

If we start talking about establishing blood quantums, we are in 
effect limiting the sovereignty of a tribe. A tribe should have that 
sovereign right to determine its own members and then the Federal 
Government should live up to its obligations all the way through 
regardless. 

If a tribe says they want to recognize open-ended descendancy, 
then that is that tribe's responsibility and authority to do so. If a 
tribe says they're only going to have full bloods, that's that tribe's 
prerogative. They are limiting themselves when they set a blood 
quantum on their membership; the}^ are, in effect, practicing genocide 
on their tribe because we all know, in reality, we have a tremendous 
amount of intermarriage all over the Nation. 

When a tribe establishes its blood quantum, they are in effect, 
practicing the assimilation policy which, in effect, brings about geno- 
cide for the American Indian which, in the long run, will reduce the 
delivery of services to American Indians. 

Will they have perhaps 50 to 100 years in the future policy establish- 
ment with this Commission? I think we need to really look at this 
from a standpoint if we recommend a blood quantum on anything, 
we are taking away from the sovereignty of a tribe which we are 
trying to bring back to them. 

Mr. Abourezk. OK, the next area. 

Mr. Stevens. I suggest we go back to the budget section which 
contains more general, principles. It may help move it along. That's, 
on page 15, chapter 7, and that particular subpart is the Federal 
budget. 

This section of the study is in compliance with the purpose of the 
act. The Commission staff has been unable to finalize a significant 
report of the Federal budget thus far primarily because the BIA 



173 



and other Federal agencies do not report on expenditures on behalf 
of American Indians in a manner that is conducive to evaluation. 

The Federal Government cannot review the effectiveness of Federal 
expenditures spent on behalf of Indians because nobody knows what 
the Federal budget is, much less be able to evaluate performance by a 
program and budget line item. 

Consistent with a consensus of findings and recommendations, of 
task forces as well as from numerous tribal statements and positions 
on tribal organizations, the staff recommends the adoption of the 
following general principles for Federal budget delivery. 

One. Enact legislation which would apply to all Federal appropria- 
tion acts ascribing to tribal governments the same status as States 
and their political subdivisions for funding purposes to serve as an 
eligible subdivision for this purpose when allowed direct Federal 
funding ■ 

Mr. Whitecrow. Excuse me, Ernie, where are you? What page? 
Mr. Stevens. Page 15, chapter 7. 
Mr. Whitecrow. OK. 

Mr. Stevens. It's the budget delivery system. Such legislation 
may have similar language as that suggested by task force 9 as follows : 

Indian tribes which have been recognized by either Federal or 
State governments shall be recognized as independent units of govern- 
ment for purposes of eligibility under Federal domestic assistance 
programs. 

Two: Federal budget requests should be submitted by tribal 
governments based upon long-range development plans for community 
needs. These long-range plans should include ongoing processes on a 
3-year planning cycle including current year, budget year, and planning 
year, such plans to be amended and submitted annually and con- 
form to existing or proposed Federal appropriation cycles. 

Three: Federal program standards and/or eligibility requirements 
should recognize the authority of tribal governments to create public 
agencies or corporations eligible for Federal programs. 

I'll give you an example of SB A. SB A doesn't recognize the right 
of Federal tribes to charter their own organizations — which they can — 
and as a result, in order to deal with SBA, you have to get a State 
charter. If you want to use the tribal enterprise, you can't because 
they are not willing, they don't recognize tribally charted organiza- 
tions as being eligible for some of their programs. 

They require you to get a State corporation charter which is not 
desirable for a number of reasons. One of them is infringement on 
tribal sovereignty itself. 

Mr. Abourezk. OK, Ernie, when you're reading these recommenda- 
tions, just read the outline portion. If anybody has a question, they'll 
direct it to you instead of you going clear through the explanation 
because there's no use. You know, people have this thing in front of 
them. They can read that and you reading the underlined portions 
will give them a chance to stop you if they want to question you. 

Mr. Stevens. Federal funding should be provided with strict 
limitations on Federal civil service emplojTnent and other administra- 
tive expenditures by Federal agencies through which funds are 
appropriated. 



S2-749— 77— vol. 4 12 



174 



Five: Tribal program budgets presented for funding under long- 
range community plans should be presented to Congress for considera- 
tion with minimum alteration by administrative levels of the executive 
department. The tribal budget process which is decided under the 
law in 25 U.S.C. section 476, should be fully recognized and imple- 
mented. That's a part of the IRA. 

Mr. Whitecrow. Excuse me, Ernie and Mr. Chairman, you are 
getting into the band analysis, aren't you, right? 

Mr. Stevens. Hopefully not, sir, but we could talk about it. The 
band is in many ways consistent with this particular statute. The 
reason for it is, the law — I think it was section 16, wasn't it, Pete? 

Mr. Taylor. Yes. 

Mr. Stevens. This was section 16 of the Indian Reorganization 
Act and it stated that the Secretary of Interior had to advise all tribes 
of the appropriation estimates or Federal projects for their benefit 
prior to submission to OMB and Congress. 

The bank is a method by which they tried to determine priorities. 
It is not really an equitable method to comply with this law at all. 
What the}- used to have in the old days (and sometimes you need to 
go back to that to get some halfway decent things) is the budget line 
items. 

Mr. Whitecrow. Under long-range community plans, I am reading 
that tribal program or tribal budgets be prepared at the very lowest 
level at the agency whereby that superintendent of that agency or 
that office or whichever it might be, would have to work with the 
local tribal government to determine those budgetary requirements. 

Now, is this what I'm reading here? 

Mr. Stevens. Will you repeat that, please? 

Mr. Whitecrow. I'm not sure I can. 

Mr. Stevens. Just the end of that. 

Mr. Whitecrow. Are we in this particular aspect developing the 
budget for local operations at the very lowest level right there at the 
tribe, with the tribal government having total input into the develop- 
ment process or budgets? 

Mr. Stevens. Yes, sir. 

Mr. Whitecrow. Would this be a deviation from the BAND 

analysis? 

Mr. Stevens. A decided deviation. 
Mr. Whitecrow. Very good, thank you. 

Mr. Stevens. Six: the Congress should enact legislation that re- 
quires Federal-Indian domestic assistance programs to be strictly 
accounted for. 

Seven: Federal appropriations to Federal agencies for adminis- 
tration involved in programs affecting Indians shall be separate and. 
apart from tribal government funds. 

Eight: All Federal appropriation acts should exempt tribal govern- 
ments from any requirements which might compromise tribal in- 
tegrity or Government sovereignty. 

Nine: Appropriate congressional and Executive orders should be 
issued which call for the compliance of Federal agencies, Federal 
regional councils, and the Bureau of Indian Affairs in the implementa- 
tion of the Joint Funding Simplification Act for delivery of Federal 
programs and services to Indian tribes or to tribal governments. 



Ten: Special funding for services or programs of the Federal 
Government for Indians which are not conducted for and by tribal 
governments should be requested, budgeted for, and appropriated 
separately. 

Eleven: Federal funds should be distributed with some sense of 
equity with such variables such as planning, capability, population, 
land base, financial condition being measurable and justified. Min- 
imum threshold financial requirements for small tribes should be 
satisfied without regard to equity and variables. 

Mr. Abourezk. Ernie, now the additional recommendations in the 
following pages deal mostly with the management study, is that 
correct? The only thing left in this program that does not deal w T ith 
the management study, is there anything left? 

Mr. Stevens. The independent agency is dealt with here. 

Mr. Abourezk. Let's bring that up now, leave out the manage- 
ment study since we've already adopted it and everybody is very 
familiar with it. Let's talk about the independent agency now. What 
page is that recommendation on? 

Mr. Stevexs. Page 70. 

Mr. Abourezk. What's the recommendation on that? It's 72, I 
think, starting with No. 3. 
Mr. Stevens. Okay 

Mr. Abourezk. I've got to say one thing, Ernie, that part of what 
you're calling for would be unconstitutional. Where you say there 
will be proposed enactment of a new prime agency — of the trustee by 
creating an independent agency removed from the Department of the 
Interior and independent of the executive branch. Those words right 
there, independent of the executive branch, would be unconstitutional. 

Under the Constitution, the Executive must be in control of any 
administrative agency or executive agency. It has to be there. Con- 
gress can't run it. 

Mr. Meeds. Like the Federal Reserve Board? 

Mr. Stevexs. Could you conceive that we could name one agency 
that doesn't go through the Executive? 

Mr. Abourezk. You cannot have that controlled by the Congress 
explicitly or exclusively. You just cannot do that. We just had a 
Supreme Court case on that — the Federal Elections Commission. 
There were members of the Federal Elections Commission who were 
appointed by Congress and the Commission was deemed to undertake 
some administrative functions. The Court threw that out because it 
was unconstitutional. 

Mr. Taylor. In the broad concept that you're talking about, I 
would defer to what you are saying. It is possible, however, to create 
agencies that do have some independence from the Executive. As 
Congressman Meeds mentioned, the Federal Reserve Board. 

Mr. Abourezk. That's not an executive agency. In other words, it 
does not administer funds. 

Mr. Taylor. All right, TVA. One thing, it's possible to create 
agencies that are not under the same kind of line authority that is 
generally found in the executive agencies. I know Bill Veeder wrote 
a paper on TVA at one time, as an example, and Ernie, you gave that 
to me some time ago. There are agencies that operate in a different 



176 



fashion from the normal scope of the Cabinet-level department-. 
Frankly, I haven't explored the legal issues in this thing. 

Mr. Abourezk. I wonder if it wouldn't be not only constitutionally 
safer but even more politically feasible and it might even work better 
if we had an independent agency somewhere under the President. 

Mr. Stevens. That's what we are describing. Yes, sir, we're 
talking of an agency like OMB and I think we can clarify this. 

Mr. Abourezk. That's what you need to do. We need to all have 
an understanding of what you mean and if we understand you don't 
mean to pull it out and to say it's off by itself without anybody — OK, 
go ahead. 

Well, let me just start this ruling by saying I'm in favor of making 
it a separate independent agency, Cabinet level preferred. Does 
anybody here want to speak against that concept? 

Mr. Whitecrow. I would like to speak for it, Mr. Chairman. 

Mr. Abourezk. OK, that's one, two, three, four, without objec- 
tion 

Mr. Taylor. I think a few minor peripheral comments might be 
in order. I see there's complete unanimity here and I believe most of 
the testimony of the Indian country also supported this concept but 
to sort of alleviate fears, I think what Ernie has said about this thing, 
that the creation of this thing is a process, not an event, is a very 
important notion. 

There are a lot of different programs that are in different agencies. 
I'll just speak for myself here. I can see the Bureau of Indian Affairs 
being pulled out of the Department of the Interior. The legal office, 
the Division of Indian Affairs, pulled out with it and made a part of 
this new agency. 

I think in the process, a portion of the thing being — where as this 
new agency gains its wings, you look over to the Department of 
Commerce and the Indian desk there and consideration can be given 
as to what — or whether this program should be shifted over and it 
would be an on-going process, not a traumatic event that is imposed 
all at once. 

Mr. Abourezk. What about the trust counsel authority? Is that 
dealt with in this chapter? We may as well talk about that now at the 
same time. Would you conceive of a trust counsel authority being in 
the new separate agency or separate from the new agency within it? 

Mr. Stevens. It could be within the same organization and still 
be separate in a sense. That particular thing can be done in a number 
of ways. 

Mr. Abourezk. Which way do you recommend? Well, I think every- 
body here kind of likes theidea of a trust counsel authority. When 
you come bark with the draft, pick a nice way to do it and we'll talk 
about that or pick the alternatives and we'll talk about the alternatives. 

Mr. Stevens. I want to ask you something that's related. Is the 
Commission, or would the Commission be talking about an inde- 
pendent agency such as TVA? The reason I mention TVA is because 
of its somewhat similar nature — you're talking about people and 
resources and land. You're talking about something that is controlled 
by those people. Are we talking about something that's partially or 
Wholly controlled by Indian people? If we are, the trust counsel 



177 



authority, because of its responsibilities, may have to be appointed 
wholly or partially by the President. 

In that case, it would have to be a different kind of arrangement. It 
would have to be a two-headed kind of thing, so to speak. 

Mr. Abourezk. It would seem to me if you had an independent 
agency, you would have to have — the head of that, of course, would 
have to be appointed by the President with the assent of the Congress 
or the Senate. Also, if you can accomplish this thing of having it a 
cabinet-level agency, Secretary for Indian Affairs, if we can get that 
done. That's what my preference is. I don't know about the rest of 
the Commission members. 

But there is also another concept that has been explored and I 
think I first heard of it from Ernie Stevens a few years back, that the 
way the agency be conducted would be through Indian people elected 
by the Indian community nationwide. 

Say there are what, 12 BIA areas at this point? In other words, 
divide the country up into areas, have elections conducted periodically 
and have 12 Indian commissioners who will sit as a sort of board of 
directors to advise and to pass on Indian policy and they would be 
responsive to their constituences. 

In other words, the policies carried to the President and to the 
Congress by the Secretary of Indian Affairs would be those recom- 
mended by the 12 elected people. That's another concept that ought 
to be explored. Now, what does the rest of the Commission think 
about that? 

Mr. Whitecrow. Mr. Chairman, I have thought about this particular 
aspect for many years and have always felt that just because the 
American Indian is in a separate situation, we should have a separate 
department of Indian affairs and that we should have it at cabinet 
level. I feel that that should be our first priority to seek and then if 
this were not possible, to shoot for the arrangement that you referred 
to with a Commission on Indian Affairs elected by the Indian people. 

I think that would be the most appropriate, it would be acceptable. 

Mr. Abourezk. Not both. 

Mr. Whitecrow. Not both, I don't think both would be workable. 

Mr. Borbridge. Mr. Chairman, I would like to concur with these 
comments. I very much favor that either we get a cabinet level or the 
next highest level with the fullest maximum participation by the 
Indian people in the governing of that agency and its affairs. 

Mr. Bruce. Mr. Chairman, I would like to go on record in support 
of that. I do want to raise a question about the regions — how we are 
talking about using the same area director regions for elections of 
this Commission or whatever he's talking about. 

Mr. Stevens. I think the proper way to address this is at the tribal 
or community level. 

I feel that even-body's forgotten that we have a mechanism by 
which we can deal with the Indian people and it is called tribal 
government. 

Executive department people, everybody, even the Congress, are 
always saying they don't know what we want but they never ask the 
tribes what they want specifically. In other words, if somebody wants 



178 



a vote or somebody wants to know what people think as a tribal unit, 
why don't they write, or go to the tribe and then vote on the basis of 
what they say. I think there's really no problem eondueting such an 
election. 

When you try to conduct an election from the basis of a national 
perspective, you get into problems because then we get the national 
interest groups lobbying to see who gets to handle the action. You 
shear right past that by dealing directly with the tribes. 

Mr. Abourezk. Well, that's not hard and fast. 

Mr. Stevens. You can do it by tribe, by area. I don't think it's a 
real problem. 

Mr. Abourezk. One other question I have. I had a concept that I've 
been to}ung with for the last couple of years, specificall}' in the area 
of Indian housing and after seeing w hat kind of bureaucratic mess the 
tribes have to go through to get housing programs approved, I devel- 
oped a concept that we ought to have a national Indian housing 
authority, perhaps again, elected in areas or regions whose sole func- 
tion would be to obtain funds from Congress each year and to allocate 
those funds to the tribes based on geography, population, relative 
wealth of the tribes and so forth. 

The only other bureaucracy involved with tribal housing would be 
the local tribal housing authority whose job it would be to establish 
housing priorities and then make a request to the national authority 
for funds with standards commensurate to the local area. 

For example, we find out with the Pueblo, that HUD required 
crackerbox housing standards down there when the Pueblo wanted to 
build them on adobe, which were by far superior to the crackerbox 
standards of HUD. You could avoid that sort of thing by having 
minimum safety standards everywhere, but yet esthetic standards 
and other things applicable in the local community as established by 
the tribal housing authority. 

Now, that's another concept I would like to see you explore in the 
final draft or in your draft. 

Mr. Bruce. Mr. Chairman, when you're talking about pulling all 
of the housing activities in IHS and BIA into this national housing 

Mr. Abourezk. Yes, pulling it out of all the other agencies. 

Mr. Bruce. And then funding it into the national housing 
authority 

Mr. Abourezk. Yes. 

Mr. Bruce. I'm all for it. 

Mr. Abourezk. It would really minimize the bureaucracy in that 
regard. 

Mr. Meeds. Mr. Chairman, as an old friend of mine from Texas used 
to say, we are just talking here, but in conceptualizing some kind of 
agency, bureau, or Cabinet level position to run a framework of 
delivery of services to Indian people, we've got to take into considera- 
tion that the new President has some ideas about how he wants to 
reorganize this Government. We ought not to be operating completely 
separate and apart from that, but we ought to be getting our input 
on that immediately. I hope that you people will meet as soon as 
possible with the Carter transition people. 

My own ideas are that we ought to have some kind of a delivery 
service and organization which would be somewhat in the position 
of the Office of Management and Budget out of the White House. 



179 



Indian input, whether it's by vote, tribal selection, or regional selec- 
tion, should be solicited for the selection of the person who will be 
directly responsible to the President for the running of that agency. 
There also must be Indian representation, whether it's an advisory 
board or whether it's an actual commission which works with the head 
of that agency to get the diversity of representation which will be 
needed. I think all of us have dealt with these matters and understand 
that this diversity is necessary. 

Those persons could be chosen by the President from recommenda- 
tions which are made from the field and that agency could then be 
organized along the lines of the recommendations of the Management 
Study Group. 

1 think it would be a mistake to demand that it be at Cabinet 
level, that it be thus or so until we get some input from the Carter 
people on this. 

There are a number of people who are not receiving the services 
to which the}^ would be entitled under the special Federal-Indian 
relationship, but we're talking in the final analysis about 1 million 
people. Now, if every million people in America who had some kind 
of special relationship with the Government were to demand a Cabinet- 
level bureau or agency or whatever you want to call it, we might be 
frying exactly in the teeth of what I at least perceive Mr. Carter to 
be headed toward, which is a kind of consolidation of those agencies, 
groups, or whatever. 

So I just don't think we can make a decision on this at this time. 
I think we ought to remain flexible on it with the caveat that we 
recognize that special relationship. We recognize clearly that there's 
a conflict of interest in the administration and organization of the 
Department today. We can say that we want to get away from 
that conflict of interest; that we want to put special emphasis on this 
problem; that we want to have it in an area and in the hands of people 
who recognize this special relationship and who are at least presump- 
tively somewhat more responsive to those special problems than other 
people might be. 

That's pretty general. 

Chairman Abourezk. Can we say for those purposes that the Com- 
I mission should recommend a separate agency and not state where it 
ought to be? What do you all think about that? At least, it ought to be 
separate and apart. 

Congressman Meeds. Separate entity. 

Chairman Abourezk. Yes; and ma}' be the level of it ought to be 
I decided in conjunction with President Carter. 

Mr. Bruce. I feel very strongly that here we are, backing away 
from something that we've wanted and maybe if we shoot high 
i enough and want it on a Cabinet level, that maybe we'll know that 
j we'll probably have to back away from it. 

But I still don't think — maybe it's all right, I don't know how the 
other Commissioners feel about this. I know what Congressman 
Meeds has said. We're always getting that saying OK, well, ma}-be we 
.need a department of black affairs and so forth but I think we've got 
to remember that we were here first and our arrangements were 
different. 

We were under treaty and so forth. We need to fight for that and 
I'm sure we will as Indian people. 



180 



Congressman Meeds. If I could respond. The trouble with shooting 
too high and hitting too low is often if you cast yourself in concrete 
about shooting too high. It becomes another broken promise when 
you don't achieve that high target. I certainly wouldn't want us in the 
position of asking for something when we don't know whether it's 
achievable or not. 

I just point out realistically that we may be asking for something 
we're not going to be getting, I would hate to be in the position of 
going into that and knowing it's not going to happen. 

Mr. Deer. I would like to state that I also support the concept of 
a separate entity. I think we need more discussion of whether it should 
be a special cabinet department or if it should be a quasi-independent 
TVA-type agency but I think we can all recognize that perhaps there 
needs to be some reorganization and some change from the status quo. 

I don't think we should approach this though by what we might get 
or what we could get. I think we should make our decision and make 
a strong stand for it. I think those of us who have been aware of Mr. 
Carter's penchant for reorganization should keep this in mind and 
we should take this into account, a reorganizing for the best interest 
of our people. 

Also, I think there have been comments from time to time about the 
international implications here and I think that if we did go ahead 
and let's say have a separate cabinet-level department, that this would 
affect native peoples across the world and it would show what the 
United States is doing to rectify ancient wrongs and that a change is 
possible. 

So I would like to bring that into account. The image that we would 
project by making such a substantive change. 

Chairman Abourezk. Let me suggest to the staff that wmen you 
bring your draft back, put in the alternatives — cabinet level — and 
we'll vote them up and down. That's the best way to do that. 

All right; what's the next issue? 

Mr. Stevens. Mr. Chairman, I want to ask you a question. I was 
wondering w r hether the Commission would entertain now or tomorrow 
the possibility of taking a Commission action in relation to what may 
be an action of Congress as early as the 4th or 5th of Januar} T related 
to a separate committee for Indian affairs. 

Chairman Abourezk. That's a good question. There is a new com- 
mittee operating in the Senate, a Committee on Committees that 
w^ants to reorganize congressional committees. That will be brought up 
in the Democratic caucus beginning January 4. It's liable to run for 2 
or 3 days because there's a leadership fight as well. 

I recommended to the committee that there be a separate committee 
on Indian affairs in the Congress and the response I got from them was 
that their direction was to close down a lot of committees and not 
establish a lot of new ones. My arguments about the special treaty 
relationships, trust relationships, and conflict of interest did not 
prevail upon the committee that I spoke to. 

I think though that we should take a position on it and I think 
that Ernie's idea is good, that we should take a position today or 
tomorrow, preferably today, and recommend that a separate com- 
mittee be established for Indian affairs and that can be transmitted 
then to the Democratic caucus. 

Jake? 



181 



Mr. Whitecrow. Mr. Chairman, I've boon aware of this particular 
action for about a month now that the Congress was contemplating 
on taking this action. I personally feel that we are in danger of losing 
our Indian Affairs subcommittee in this particular action and I would 
move that this Commission adopt a policy recommending to the 
Democratic caucus that a special committee on Indian affairs be 
adopted in both the House and the Senate. 

Chairman Abotjrezk. Is there a second? 

Congressman Meeds. Mr. Chairman, first of all, I would hope we 
will not be taking nny formal vote today other than the ones on which 
there was absolute consensus. I hate to keep playing a devil's advocate 
here but the Indian Affairs subcommittee of the full Committee on 
Interior and Insular Affairs probably handled in the last session one- 
one hundredths or one-two hundredths of all the legislation that went 
through the Congress, and probably handled less legislation than 
certainly any full standing committee of the House. 

And again, I think we have to look at the realities of the situation. 
With the amount of work necessary, if the recommendations of this 
Commission were to be implemented, and considered in a timely 
fashion, it would almost take a full committee. 

I recognize that, but whether or not we are being realistic by casting 
ourselves in concrete on this recommendation, I have some question. 
My personal opinion is it's highly unlikely that the House — and I can 
only speak for the House — is going to create a special standing com- 
mittee on Indian affairs. I just don't think that's going to happen. 

I think what we ought to be doing again here is laying out some 
alternatives, and not say that this is what we must have. 

Chairman Abourezk. Well, I think there's merit to that argument 
but I think that we sincerely ought to recommend that Indian affairs 
be taken out of Interior because that's where the great conflict of 
interest arises. 

Congressman Meeds. I agree. 

Chairman Abourezk. Interior is generally populated by western 
Senators and Congressmen, all of whom have interests out there and 
western Senators and Congressmen are subject to great pressures, 
political pressures, by the non-Indian community and I don't know 
where you would put it — that Indian Affairs subcommittee. It might 
be better in Labor and Education or Government Operations, even. 

Mr. Meeds? 

Congressman Meeds. Mr. Chairman, I was a member of the ill-fated 
Boiling committee in the House where we recommended that Indian 
affairs be a part of the Government Operations Committee. I don't 
know that that's the best option, but it's the best we could find at the 
time recognizing the conflict of interest in Interior. 

But I might just take a little issue with the Chairman's statement — 
or my inference of the Chairman's statement — that it's necessarily 
wrong for Members from affected States to be on the Indian Affairs 
Subcommittee. 

We are dealing in this country with reality. I have always personally 
been upset that all the members of the Armed Services Committee, 
from the House and Senate, come from areas where there's a great 
impact by the Armed Services and a great many of the members of 
the Education and Labor Committee are education or labor oriented. 



182 



Members from the Agricultural Committee of both House and Senate 
como from farm States and so on. But they do, in this fashion, represent 
at least a cutting edge of problems. 

I think that we would be shortsighted if we were to demand some 
kind of situation in which only those who are insulated from the real 
problems in the field were members of the Appropriate Committee. I 
recognize that it's also nice to have some insulation, but it's also nice 
to be a little realistic sometimes. 

Chairman Abourezk. What is the pleasure of the committee in 
regard to a separate committee? Does somebody want to make a 
motion? 

Mr. Whitecrow. I have made the motion. 
Chairman Abourezk. What's the motion? 

Mr. Whitecrow. 1 made the motion that we go on record and 
establish that the caucus coming up on the fourth day of January 
consider establishing a separate committee on Indian affairs. The 
reason that I made that motion — and that would be a sepaiate com- 
mittee in both the House and Senate — is the fart that if we're going 
to be shooting for a cabinet level, then I certainly think we need to 
put the same emphasis in the House and the Senate, thereby giving 
strong emphasis all the way through in the Federal Government. 

Chairman Abourezk. Your motion is not necessarily that we put 
it in the final report but that we make the recommendation as a 
Commission to the caucus? 

Mr. Whitecrow. To the caucus, yes, sir. 

Ms. Deer. I second it. 

Mr. Bruce. Question? 

Chairman Abourezk. Louis? 

Mr. Bruce. Can we ask you who are in the Congress where this 
committee might end up? 

Chairman Abourezk. I don't know, I couldn't answer that. 
Mr. Bruce. Any idea? 
Chairman Abourezk. No. 
Mr. Bruce. OK. 

Mr. Deer. Mr. Chairman, I would express a point of view that 
I have heard from a number of Indian people in regard to this. It's 
a feeling that by fragmenting Indian affairs into several other com- 
mittees, the Indians are going to get lost, that there will be a great 
difficulty in educating numerous people and having gone through 
a lobbying process myself I know it would be a tremendous job to 
educate many, many other people in various committees rather than 
concentrating on major committees. 

So I would like to speak in support of the motion. 

Chairman Abourezk. Any other comments? 

Mr. Borbridge. Mr. Chairman, as I understand the motion, 
what it does is to state that on the upcoming meeting of the Com- 
mission, there will be presented to the Commission a recommenda- 
tion, but I don't quite perceive that it precludes other options as being 
placed before the committee. 

Chairman Abourezk. No it doesn't. I think if I clarify it with Jake 
properly, the motion goes toward — and I think it will go in the form 
of a letter from the Commission to the Democratic caucus — putting 
us on record in favor of a separate committee hoping that they'll 



183 



act that way. Then the staff will come back January 6 and 7 with a 
number of alternatives that we can vote up or down. 
Mr. Borbridge. OK. 

Chairman Abourezk. Is that the way you intended it, Jake? 
Mr. Whitecrow. Just exactly. 

Congressman Meeds. Mr. Chairman, if 1 might, how would it look 
if we sent a letter tomorrow or the next day to the Democratic caucus 
suggesting a full committee and then later came forward with a 
recommendation that it be, for instance, in the Committee on Govern- 
ment Operations? 

So what we are doing here is taking a 

Chairman Abourezk. I personally don't see it that way. By the 
time we're ready to meet again January 6 and 7, we will know what the 
disposition of the caucus would be and then we can take alternative 
action at that time if it's needed. 

OK. All in favor of the motion will raise their right hand. Five. 
All those opposed raise their right hand. 

The vote is 6 to 1 in favor of the motion. The motion passes. 

Congressman Meeds. Mr. Chairman I want the record to show I 
voted against it because I think it's unrealistic request. 

Chairman Abourezk. OK. I'll direct the staff to prepare a letter on 
behalf of the Commission. Point of clarification, do you want it to go 
to the House Democratic caucus as well? 

Mr. Whitecrow. Yes, sir. 

Chairman Abourezk. All right. A separate letter to each Demo- 
cratic caucus in the Senate and the House and the Democrats are 
organizing both bodies. Well, we'll work on the drafting of it Ernie, if 
you'll work with me on that. 

We can do that, it doesn't have to be done this week necessarily 
but sometime before January 4. 

Congressman Meeds. Mr. Chairman, I would just like to point out 
further that there will be no action taken by at least the Democratic 
caucus in the House on the formation of the House of Representatives 
itself. At most, this would be a recommendation from the Democratic 
caucus to the House because what you are requesting is not a matter 
which has to be dealt with by the Democratic caucus but by the 
full House of Representatives and the full Senate. 

It is an organizational question and would have to be by concurrent 
resolution and not by an adoption of a resolution in the caucus. 

Chairman Abourezk. No ; but if the Congress adopts it, then the full 
Senate and full House will adopt it since traditionally what the 
caucus does by way of organizational matters is carried on to the 
floor of each body and the Democrats generally totally support 
those recommendations out of the caucus. 

Congressman Meeds. If the chairman will yield, I'll just remind 
him of my experiences with the Boiling Committee and with the Obey 
Commission and others when that hasn't exactly been the case. 

Chairman Abourezk. Well, you can't win them all. Are there other 
issues now that need to be brought up in this chapter? We are ap- 
proaching 35 minutes beyond our deadline. 

Mr. Stevens. On page 72, I think we address the independent part 
adequately and the budget part and separate career service has 
alread}' been dealt with. 



184 



The next step is to develop a unified program of economic develop- 
ment on Indian reservations for Indian people * * * premised on 
the development and maintenance of tribal autonomy and sovereignty. 
Related to autonomy and sovereignty, procedures would be de- 
veloped to provide Indians with an integral board and policy for- 
mulation decisionmaking process. We dealt with that. 

Develop an organizational structure, decide to shift authority and 
responsibility to the local level. We dealt with that. 

Implementation plans and structural revisions should be prepared 
for considerations of the January meeting based on the above guide- 
lines. 

Chairman Abourezk. Is that it? 
Mr. Stevens. Yes, sir. 

Chairman Abourezk. OK. We are 30 seconds away from adjourn- 
ment or recess. This is your last chance. 

We are recessed until 10 o'clock tomorrow morning. 

[Whereupon, the hearing was recessed at 1:40 p.m. to reconvene at 
10 a.m., Monday, November 22, 1976.] 



MEETINGS OF THE 
AMERICAN INDIAN POLICY REVIEW COMMISSION 



Section II — Findings and Recommendations 



MONDAY, NOVEMBER 22, 1976 

Washington, D.C. 

Present: Senator James Abourezk, Chairman, Congressman Lloyd 
Meeds, Vice Chairman, Senator Lee Metcalf, Senator Mark Hatfield, 
Congressman Steiger, Congressman Sidney Yates, Commissioner 
John Borbridge, Commissioner Louis R. Bruce, Commissioner Jake 
Whitecrow, Commissioner Ada Deer, Commissioner Adolph Dial. 

Commission staff: Ernie Stevens, staff director, Ms. Ernie Duche- 
neaux, administrative assistant, Paul Alexander, Peter Taylor, Ray 
Goetting, Donald Wharton, Charles Wilkinson, Dr. Patricia Zell. 

Mr. Meeds. The American Indian Policy Review Commission will 
be in order for the purpose of the proposed report of the Commission 
and the clerk will call the roll. 

Members present: Commissioner Borbridge, Commissioner Bruce, 
Commissioner Deer, Commissioner Dial, Congressman Meeds, Com- 
missioner Whitecrow, Congressman Yates. 

Mr. Meeds. Seven members have answered to their names and a 
; quorum is present. 

The first order of business today is a discussion and explanation of 
chapter 12, ' 'Non-Recognized Indians." Paul Alexander is the lead 
staff person on this. 

Paul, could we ask you to give us a general overview of your task 
force reports and then perhaps we could get to the specific recom- 
; mendations of the staff. 

Mr. Alexander. Much of the materials in this chapter 

Mr. Meeds. Excuse me, any of the Commission members should 
feel free to ask and interject questions at any point. Please proceed. 

Mr. Alexander. Most of our materials in this chapter come from 
task force No. 10 which was both nonrecognized and terminated 
Indians, and because of the legal distinctions between the two groups, 
• we have separated them into two chapters and are only in this chapter 
i dealing with nonrecognized. In addition, several of the other task 
; forces made findings and submissions in this area. 

This is an area that the staff does not feel at this point that we have 
a definitive pattern of recommendations, but a general outline of the 
i direction we would like to follow and then work out some of the de- 
tails. Generally, historically nonrecognized Indians have been Indian 
tribes in the United States both in the West, but predominantly on 
the east coast, who for a variety of reasons, have not been formally 

(1S5) 



186 



subject to the political relationship between the United States and 
the tribal entity. 

The term "nonrecognized" is a term deeply resented. Tn field hearings 
it is almost 50 percent of the scope of the testimony, the notion that 
people's names that go back deep into the history of this country 
somehow feel that terminology makes them non-Indian. 

One of the prime things that comes from all of the field hearings, 
regardless of the actual political relationship, the level of services, is 
that there be a recognition that these people are in fact Indians — 
as a prime moving statement in this subject area. The other point 
that has to be kept in mind, is that there is significant diversity 
between the group we have been calling nonrecognized Indians. There 
is a diversity of history and there is a diversity of current circum- 
stances. 

Some of these groups have had treaties with the Colonies and in 
some cases with the nations that preceded the United States, some 
have significant land bases with significant population, some have 
minimal land bases, some have fairly intact governmental units. 
What we have identified and what the task force has identified is 
that there has been a significant problem with how the Department 
of the Interior, the prime agent of the United States, has operated 
in extending recognition. The notion that people who conceive of 
themselves as Indian have to petition the Secretary of the Interior 
and prove their Indianness is something that is extremely offensive 
to the people in the field, and is spoken of with great frequency. 

I will move to our page 12 in the chapter. The staff has come up 
with a tentative package to try to take into consideration some of 
the issues in this area. One issue I must mention before we get into 
it, is that there is a significant feeling in Indian country generally, 
because the Indian pie, regardless of the fact that nobody can define 
it with specificity of actual dollars, is small. Many of the tribes 
currently in the Federal-Indian political relationship, called recog- 
nized tribes, have expressed the fear that adding groups, adding tribes 
to this package wall significantly diminish the services that those 
groups are currently getting. And this is a practical political problem 
which needs to be faced and we think we have tried to face it to some 
extent in our pattern of recommendations. 

Mr. Meeds. May I interrupt at that point, Paul, to ask a rather 
basic question. It seems to me in view of these acts with the recognized 
tribes, we have premised the obligation, responsibility, and relation- 
ship between the Federal Government and tribes on treaties and 
aboriginal rights. What is the basis for the responsibility of the Federal 
Government to nonrecognized tribes and specifically to tribes which 
perhaps, there never were treaties? 

Mr. Alexander. The basis essentially comes out of the Kagama 
Doctrine of 1887. Kagama talks about dependency status and that 
concept is very important. It is a course of dealings of the United 
States and its preexisting States and Colonies with the Indian people 
which have in effect, placed the Indian people in a wardship status, 
in a status of being dependent upon the United States, of having 
removed certain land bases, having interacted in a way that has a 
negative impact on the political, social and economic viability of these 
groups. Kagama is one of the underlying conceptions in the trust 



187 



responsibility area. The fads that show a trust responsibility, be they 
evidenced by treaty or specific Executive order, arc generally the same 
and even in some cases more severe, particularly on the cast coast. 

I was personally struck sitting in hearings in Boston, Mass., to 
have a gentleman come up and say I am chairman of the Mohegan 
Tribe, contrary to the general wisdom, and there arc 200 of us living 
on aland base in Connecticut. We had an agreement with the United 
States. We lost a great deal during the expansion and the Colonial 
period. What we are talking about is a course of dealings, mostly on 
the east coast, and there are differences on the west coast, nonrecog- 
nized tribes clearly, between the States and the Colonial Governments 
and the various Indian tribes which pnt the people in those situations 
in a de facto, though not necessarily recognizing a de jnres dependency 
status. 

The citation is Kagama, 118 U.S. 375-1886. If you would like a 
specific quote from the case I am talking about: 

It seems to us this is within the competency of Congress. These Indian Tribes 
are wards of the nation. They are communities dependent on the United States, 
dependent largely for their daily food. 

And I will skip now — 

From their very weakness and helplessness so largely due to the course of 
dealing with the Federal Government with them and the treaties which has been 
promised, there arises the duty of protection and powers. 

Many of the cases we are talking about, and they are in fact, pre- 
dating treaties, with the Commonwealths, with England, with 
France, and so on, that it is the concept of dependency through a 
course of dealings. 

Mr. Meeds. Is there any indication that the delegation of responsi- 
bility for treaties which may have been signed by individual Colonies 
for other nations has been accepted, by the Federal Government? 

Mr. Alexander. Without being specific, there is a concept in 
international law that when a legal bocly takes on the obligation of 

i the preexisting legal entities, that also, although they do not neces- 
saril}^ — they could and perhaps they should have, and that would 
have made life a lot easier historically — at least on a conceptual basis, 
they took on the obligations of the preexisting political entities that 
in fact became the United States. 

Mr. Meeds. I think we recognize all too well what the Federal 
Government has dealt with and has provided services and admitted 
responsibilities for many years through its lead agency, the Bureau of 
Indian Affairs, to those Indians who are members of recognized tribes. 
By the same token, the Government has generally denied that re- 
sponsibility to people who are not members of recognized tribes. I 
know there are exceptions. Now, on what does the Bureau of Indian 

1 Affairs and the Federal Government premise this denial of responsi- 
bility? Do the}' recognize the Kagama doctrine and if not, wiry not? 
Mr. Alexander. In a letter to Senator Jackson on the Maine 

? decision laying out what the criteria for what Federal recognition 
should be, or are, the Department set out five criteria which in fact, 

I incorporate to some extent the Kagama doctrine. The problem is not 

j necessarily the Secretary of the Interior, the lead agent of the United 
States, does not recognize, at least in that letter it is recognized, the 

I doctrines and the concepts; but they are not applied. 



18S 



There are a number of requests for recognition that are in fact, not 
acted upon. And that gets me jumping a bit to what we have made 
the basis of our recommendation which is shifting the burden of proof 
in administrative procedures to determine the historical political 
relationship between an individual tribal group and the United 
States. 

If you like, I could read you the five standards the Department set 
out in relationship to the Passamaquoddy case. It is on page 1, chapter 
12. 

Mr. Yates. How many unrecognized tribes are there? 

Mr. Alexander. The best estimates that we have and this comes 
from task force 10, which approached the issue by trying to set up 
the demographics and the history of groups almost one by one. We 
are talking about almost 100 tribes, approximately 90. There is not 
a clear-cut number I can give you. 

Mr. Yates. It seems to me this is a great number. How many 
Indian people are we talking about when we talk about under 100 
tribes? 

Mr. Alexander. I cannot give you an exact answer to that. The 
•data collection for those individuals, which is primarily census-based, 
is viewed as being exceedingly inaccurate. Most of the groups that 
would fall within that group of the 90 are relatively small. There 
are a few groups including the Maine tribes and the Lumbees that 
would number in the thousands. Most of the groups would number 
anywhere from 50 to 200. 

Mr. Yates. What is the total of the census-recognized Indian 
people in this category? 

Mr. Alexander. This is memory, and I will go back and put the 
exact figure in the record, but I believe it is about half a million 
people in the recognized category. 

Mr. Yates. Since the Kagama decision, almost 100 years have gone 
by. Why had there been no recognition prior to this time? I know you 
have the five standards that appear on page 1 of your report, but if 
those have been onerus and prevented recognition, and then why 
has there not been an effort to change those standards, supported 
by some strength? 

Mr. Taylor. Congressman Yates, my name is Peter Taylor. I was 
with Interior for about 5 years, and had occasion to read some of the 
files relating particularly to the Lumbee case that resulted in a deci- 
sion in the District of Columbia circuit. The title of the case is 
May nor v. Morton, in which 22 Lumbees were recognized as Indians 
within the meaning of the Indian Reorganization Act. 

In the Solicitor's file in that case, there is quite a lot of historical 
information relating to the Lumbees. Commissioner Dial and I have 
talked about this. In the very late ISOO's, the Lumbees asked the 
Bureau of Indian Affairs to aid them in their school system and 
provide money for the operation of their schools. Interior had never 
heard of the Lumbee Indians before. This was their first knowledge 
of them. 

The}' did look into this matter and came to the conclusion that, 
yes, in fact, these were Indian people. The response of the Com- 
missioner of Indian Affairs to the request for these funds or any form 
of recognition is, "We don't have enough money to do our job now, 



189 



and before I recognize any more tribes I have to have more more 
in the pot." 

Money, I think, is the practical basis for nonrecognition. 

Mr. Yates. You mean over the whole course of almost 100 years, 
this has been the deterrent toward recognition? 

Mr. Taylor. As far as the Lumbee situation is concerned, that was 
it. 1 believe it is a very guiding principle and a practical one, too. 

Mr. Yates. How does this relate to the five standards you have 
in your report? What you are saying is the Bureau of Indian Affairs 
said we have no money. If they had money, would your five standards 
have been the test? 

Mr. Taylor. Those five standards were set forth by the Bureau of 
Indian Affairs in a letter to Senator Jackson advising him of the 
criteria they recognized 

?v I r. Yates. That should be fairly recent, then? 

Mr. Taylor. It is. 

Mr. Alexander. The Passamaquoddy case. 

Mr. Taylor. The letter is an exhibit in the report of task force 
No. 9. I can pull that letter or show it to you. 

Mr. Yates. I presume it will be made a part of the record. But 
the thing that puzzles me is you have so many decades go by and the 
problem still remains. I don't understand why there wasn't any 
effort in the interim, any concerted effort, to try to change that situa- 
tion to make available to the nonrecognized tribes the benefits that 
were accruing to the other Indians, the other Indian people. 

Mr. Taylor. I think the explanation lies in the historic attitude 
of the Federal Government toward Indians. Indians were at rock 
bottom in 1934. The policy starting in 1887 was one of assimilation. 
The General Allotment Act as found in the case of U.S. v. Diaper, 
was to wipe out Indian reservations and do away with the Indian 
governments. So, from 1887 to 1934, the pohVy thrust would cer- 
tainly have been away from recognizing any Indians. 

The 1934 act came in, and within 6 years we were involved in 
World War II, and people were not thinking about Indians, or hardly 
anything else. It was shortly after World War II when we went into 
termination. We weren't going to recognize any more tribes then. 

The answer is the policies have been away from it. 

Mr. Meeds. I think it should be added, and it is probably the same 
rationale, there has been no effort on the part of recognized tribes 
to have more tribes recognized because they realized they would have 
a smaller part of the pie if a lot more services were to be made available 
to a lot more people. Isn't that a pretty standard understanding? 

Mr. Alexander. That is what I was referring to earlier. I think 
there is one further component to that. Most of the groups we are 
talking about are relatively poor and fairly powerless. So the Pas- 
samaquoddy case, which is viewed as a major breakthiough in this 
area under the Trade and Intercourse Act, would probably not have 
occurred had it not been from the fallout of the war on poverty in the 
sixties with the provision of legal services throughout the United 
States. There were not the instrumentalities available to these 
groups to be able to press their causes until the recent day, and that 
is a significant development. 



S2-749— 77— vol. 4 13 



190 



Mr. Dial. You speak of the pie. Down where I conic from, we have 
different sizes of piepans, you know. You have a small family, you 
cook a small pie. You have a large family, you use a different piepan. 
Sometimes you forget the round piepans and you just use a big 
biscuit pan and cook some pies. You can call it a pie. But it is not a 
small round pie. 

Now, you fellows are going on the assumption that Congress has a 
fixed amount of dollars that cannot be changed and federally recog- 
nized Indians, it appears if they fight "non-federally recognized" — 
and I don't like the term and when this study is over, I hope we never 
use it again — they seem to feel you can only cook a pie so large. 

But the U.S. Government in other areas seem to get as much as 
they want. They can cook a pie to go to the Moon, they can cook a 
pie to do anything for anyone in the Nation or anywhere on the globe, 
and they have consistently denied citizens here, the first Americans, 
some of their basic rights. I would hope that this pie business would 
not continue. 

You are right. It did happen in 1890. That was the date — it was 
my grandfather, W. L. Morris, who wrote Commissioner Morgan 
at that time concerning some funds for support. This was immediately 
after legislation was passed from the North Carolina General Assembly 
in 1887, establishing what is today Pembroke State University, a 
university with approximately 2,200 students, and 500 or 600 Lumbee 
Indians. That was the beginning of our education. 

The Commissioner did refer to the fact they did not have enough 
money to take care of the Lumbees. Of course, we, as other tiibes, 
and I am a Lumbee, as you all know, we have other tribes, federally 
nonrecognized, we have fought various battles of recognition for 
many, many years. We never have had a treat} r with the Govern- 
ment, 3^et some federally nonrecognized tribes had treaties at one 
time. 

It was never necessary that we have a treaty. We held on to a 
good portion of our lands. I am proud to say I have 250 acres of that 
good land where the Lumbees have always lived, and some of the 
individuals own as much as 1,000 acres. But on the other hand, we 
do have a lot of poor people and we are concerned with services for 
Lumbees. 

But getting off of this subject right here, the question comes to my 
mind: What is an Indian? What is a federally recognized Indian? 
And what is a federally nonrecognized Indian? And who has the 
authority to say who is Indian and who has the authority to say you 
are not Indian? 

I was born and reared in an Indian community. I recall after 
earning six battle stars in World War II and trying to enter a white 
tobacco warehouse where a square dance was taking place, I was 
told "No, you can't go into this place." First the individual says to me, 
"Are you from Pembroke?" I said, "Yes." He said "Are you Indian?" 
I said, "Yes." He said, "Well, you can't go in. This is for whites 
only. And I said "OK," and I turned away. 

I was denied all of this for many, many years, well up until the 
present, if you want to put it that way. The white people there still 
feel there, you know, they have something on Adolph Dial — which 
they don't — but unfortunately the} r feel that way. 



191 



It would bo hard to tell mo I am not Indian. If I pull my driver's 
license out, a local white fellow issued them. He did not Bafj . "What is 
your race?" He just put "Indian" on these drivers' licenses. I have 
them if anyone wants to see them. 

Then, I would hate for the Secretary of the Interior to tell me I am 
not Indian. I don't like the idea of the Secretary of the Interior savinir, 
"Well, you are not recognized by the U.S. Government" I would not 
mind him saying, of course, we are recognized as a result of 1956 
legislation, but I am sure everyone of the nonfederally recognized 
tribes, they don't want the Secretary of the Interior to say, "No, you 
are not recognized." 

I believe a community should determine, and here I am giving you 
a report, I believe a community should determine, a community of 
Indian people, who is Indian and who is not, and I am sure you would 
agree with this. 

This, then, leaves the problem of who is going to determine whether 
or not you are a tribe. Will you answer that question? 

Mr. Alexander. I think there are two things contained in your 
statement. One of them is the acknowledgment of an historical 
cultural, political fact of Indian existence. The other is a political 
doctrine. And that lias its components, it has its origins in international 
law. The United States, as a government, may recognize the Govern- 
ment of Mainland China or it may recognize the Government of 
Formosa. That recognition is a political fact. It does not necessarily 
deny the existence of the fact the people residing in either of those 
places are Chinese. 

I think in our discussion and why in our recommendations, we 
tried to separate those two components to deal with that. The lack 
of political recognition for many of the tribes we are talking about 
seems to at least connotatively carry over into a denial of Indian 
existence. 

We are trying to approach that in our recommendations which you 
and I have discussed for a long time. A separation of those two factors, 
which is why the first recommendation on page 12 states: It is the 
policy of the United States to recognize all American Indian tribes 
or aboriginal peoples of the United States and acknowledge their 
ongoing identity without regard to the political relationship which 
may exist. 

That is just saying Indian people are Indian people and we will 
have to move on to decide what the political relationship is in other 
contexts. That comes from the views expressed by the many tribes 
in the field hearings held by Chairman Hunt in Task Force 10. There 
is just an incredible anger and emotional frustration at the notion 
that they are somehow not Indian, regardless of the social services 
that may be delivered or not delivered, and the political relationship 
between their tribe and the United States. 

We tried to separate it out as a separate concept. 

Mr. Meeds. In the five criteria, I assume you feel it is not meeting 
the collective requirements which constitute recognition, but meeting 
only one requirement. Is that what the task force said? 

Mr. Alexander. That is correct. 

Mr. Taylor. If I could address myself again on the recognition, 
I have the letter the BIA wrote to Senator Jackson. The date of it is 



192 



June 7, 1974. It lays out the five criteria that appear on page 1 
here, and the page 1 thing is a verbatim quote from this letter. 
The question Senator Jackson asked, or at Least one of the questions! 
is, "IIow many tribes in the past 20 years have been recognized by 
Interior?" They list nine tribes. It will take a second to run through 
these. 

They indicate what authority was used as the basis for that recog- 
nition. I happen to have been involved in discussions on this letter 
at the time it was written. It took Interior at least 6 months to write a 
reply to Senator Jackson. The fact of the matter is, they had nevev 
shaken out their criteria. So this was a breakthrough. 

As a matter of fact, it was somewhat controversial, even the five 
that were listed, and they were stretching legal authorities. 

The first tribe they list is the Menominee tribe and they cite the 
Restoration Act as the basis for that. 

Mr. Meeds. Which is a separate issue. 

Mr. Taylor. Then they add eight morel The original band of 
Sault Ste. Marie, Chippewa; Yavapai-Tonto Apache in Arizona; 
the Xooksack in Washington State; Burns Paiute in Oregon; Upper 
Skagit of Washington; the Sauk Suiattle in Seattle, Wash.; the 
Coushutta of Louisiana; and the Miccosuke in Florida. 

There is a rather interesting story behind the Miccosuke Tribe. I 
understand they apparently petitioned Fidel Castro for recognition and 
Cuba was getting ready to recognize them and the State Department 
called BIA and said, ''For God's sake, we have to do something about 
this." So BIA recognized them as a tribe. 

Mr. Dial. The Miccosuke Tribe, did they not recently organize; 
aren't they really the Seminole Tribe? 

Mr. Taylor. I am really not that familiar with their history. 

Mr. Dial. Aren't they a political band? 

Mr. Taylor. They are recognized now by BIA as being political. 
They may have permitted them to reorganize under the Indian 
Reorganization Act, which Xo. 1, recognizes existing tribes, but also 
provides the means by which groups of Indian people who, let's say, 
do not have sovereignty recognized through the treaty process 

Mr. Dial. Miccosuke did not appear in the history books prior to 
the fifties, did they? 

Mr. Taylor. Not to my knowledge. 

Mr. Dial. I have visited in the area. 

Mr. Yates. With respect to your response to Senator Jackson and 
the recognition given to the tribes you itemized, did each of those 
tribes meet all of the criteria listed on page 1 of your report? 

Mr. Taylor. I am not sure I could answer that. 

Mr. Yates. Your colleague to }*our left shakes his head no. 

Mr. Taylor. I would be inclined to agree with Mr. Alexander. I 
would think probably not all of them did meet it. 

Mr. Yates. If that be true, what is the sense of setting forth a 
list of criteria? 

Mr. Alexander. I was shaking my head because I understood 
3 r our question to mean each of them. They met one or more of the five 
criteria. 

Mr. Yates. Is that the test? I thought they had to meet all of 
them. 

Mr. Alexander. Xo. 



193 



Mr. Yates. But each of the tribes did meet one or more of the 
standards established by the BIA? 
Mr. Alexander. Yes. 

Mr. Taylor. As to the five criteria listed on page 1, this is not 
our recommendation; this is a finding of the criteria the BIA is 
presently using. Our recommendations go beyond this criteria. 

Mr. Yates. I understood these were the criteria specified in the 
letter of Senator Jackson by BIA that it was using as a means of 
recognition? 

Mr. Taylor. Yes, sir. 

Mr. Yates. In respect to my questions before, I think you still 
did not testify as to members of nonrecognized Indians in the coun- 
try. I don't remember that you answered that ; did you answer that? 

If you can't answer it, would you supply it for the record at a later 
time? 

Mr. Taylor. Mr. Alexander said there were approximately one-half 
million. This is a figure I have always heard, too. Approximately 
500,000 are recognized; approximately 500,000 are not recognized. 

Mr. Dial. About 200,000 on the east coast? 

Mr. Alexander. The problem with figures is the way the data is 
generally collected indicates service populations. The second half 
million figure includes both members of recognized tribes residing off 
reservation either in urban areas or rural areas, and nonrecognized 
Indians, and it is not very clear from any of the data systems existing 
exactly what the breakout between the two is. 

All we can say for certain is there are approximately one-half 
million people in the existing service population of the BIA and the 
IHS, and how that other half million breakdown comes out, our guess 
is, an educated guess, is the majority would fit into a recognized 
criteria or standards of being members of the tribes who have a 
political relationship with the United States. 

I think it is of interest to note of the nine tribes recognized, seven 
were recognized in the 1970's. The Miccosukes in the early 1960's, and 
1967 is the next date. Senator Jackson's request was for a 20-year 
period. It shows you where the movement has been and it has been 
very recent. 

Mr. Meeds. If I may interrupt, recently within the last month, one 
additional tribe has been recognized. The Stillaguamish. 

Mr. Taylor. That is correct. I would like to make an observation 
on these population figures. 

Mr. Yates. What form does recognition take? 

Mr. Meeds. It takes the form of acknowledgment by the BIA, the 
Department of the Interior, that this is a federally recognized tribe 
and I assume that is by letter and by document? 

Mr. Yates. This is a decision by the Secretary of the Interior? 

Mr. Meeds. Yes. 

Mr. Yates. Or by the Director of the BIA, which is it? 
Mr. Meeds. Secretary of the Interior, although it obviously comes 
up through BIA. 

Mr. Wharton. With respect to the Stillaguamish, recognition was 
still not complete as I read the opinion. It was a limited recognition. 
So when we speak of recognition, I think we need to recognize that is 
not an absolute concept. With respect to the Stillaguamish, for 
instance, they would not take their land into trust. But I did notice 



194 



they may take some of their land into trust based on considerations 
they would make a decision later, so recognition is not an absolute 
concept. 

Mr. Meeds. I think that distinction of tribally held trust land as a 
method for Federal recognition was always prior to the Jackson letter 
of 1974. If you had tribally held trust lands, you were clearly a federally 
recognized tribe. 

Mr. Taylor. That is correct. The problem BIA had on this, par- 
ticularly with the Sault Ste. Marie with that the}' did not have any 
land in trust status, therefore, BIA said, "We cannot recognize you." 

But a person had left the tribe, I believe property in his will and the 
tribe wanted that property taken into trust, BIA said, "We cannot 
take it into trust, you are not recognized." 

So it was Catch 22. 

Mr. Wharton. One other thing about the Stillaguamish, they were 
recognized in the Court in U.S. v. Washington. They had a treaty 
relationship of at least fishing rights. 

Mr. Dial. What would you gentlemen say to this business of 
recognition? It appears we won't find any new Indians, you know, in 
the hills or in the valleys or in the swamps anyplace; and yet, we have 
been fooling around with recognition for a long, long while. Therefore, 
the Government has gotten itself into real trouble for shirking responsi- 
bilit3 r they should have dealt with a decade ago and more than 100 
years ago. 

What do 3^ou suggest we should do now for recognition and at the 
same time keep, we will say, some group in New York City, 100 
people, who have no Indian blood at all who decide they are going to 
get together and call themselves Indians? Certainly we will have to 
take care of that situation. But the Indian people who have been 
around now since before 1492, what do you really suggest for this in 
the way of recognition? 

Sum it up for us. 

Mr. Alexander. I refer you to page 13 of this chapter. In general 
terms, what we are suggesting is an administrative procedure, whereby 
the burden of proof would be on the Secretary of the Interior to show 
that a petitioning Indian group does not meet one of the criteria, and 
generally we have used the same type of criteria, at the moment, that 
the Department of the Interior has used; that is not a final decision on 
our part but just a direction. That, once there is a decision that the 
Secretary cannot show that a group does not meet these criteria, 
these decisions, of course, in the framework we have set out, would be 
appealable to a three-judge Federal court and so on, that the Secre- 
tary sit down with the tribal group and negotiate out in specific 
terms what the components of that particular recognition would be 
and make a submission to Congress for whatever additional appro- 
priations would be necessar}^ for that particular agreement. 

What is necessary to take into account here is that many of the 
groups that have been termed "nonrecognized," do, in fact, get a 
number of services in the education, and CETA, et cetera, areas. It 
would have to be a factual determination as to what are the existing 
resources going into that community, and if, in fact, there are any 
additional services required. 

The reason we did this is because those groups, to the extent we are 
knowledgeable about them, are extremely different. Commissioner, 



195 



you have expressed to me and to the rest of us many times that the 
Lumbees have no desire for the Federal land management/trusl type 
relationship that many people conceive of. 

Mr. Dial. I cannot speak for all of the Lumbees. I would say a 
majority of the Lumbees are not seeking a reservation. But they do 
feel they are entitled to services. 

Mr. Alexander. I would say at this point in history, the testimony 
I have read and heard, seems to focus on social service compo- 
nents of what we would call the secondary components of the trust 
relationship. 

Mr. Dial. Since you are speaking of Lumbees, where would you 
say — out of the five there 

Mr. Meeds. You are suggesting seven criteria, any one of which 
would suffice? I would say both (A) and (G) the Lumbee could 
meet. 

Mr. Alexander. You might also come under (C). I would have to 
look at the specific terms of the 1956 act. 

Mr. Meeds. Assuming we were to adopt and make this kind of 
recommendation, why do you feel the burden of proof should be on 
the United States, in effect to rebut that the group does not meet 
one or more of these criteria? Doesn't that impose a great burden on 
the Government and open the door for almost endless litigation 
and possible delivery of services before the fact? 

Mr. Alexander. Today, I think the door is open for endless litiga- 
tion, basically because we do not have a pattern of the Secretary 
and his agents in the Interior Department acting in an affirmative 
manner. 

Most of the litigation we have seen coming out of Maine, and 
I think what we are going to have to look forward to unless there is 
a shift in patterns, is endless litigation in each one of these instances. 
The truth of the matter is, the tribes do not have the resources to 
conduct such litigation. 

The Secretary could clearly, with the resources available to him, 
make a negative showing in the type of example Mr. Dial pointed 
out. Where 12 people with no history decided for a lark, or for whatever 
reasons, to denominate themselves as an Indian tribe. 

I think we have seen throughout most areas of Federal administra- 
tion, a lack of willingness on the executive department to act affirma- 
tively, so that Indian tribes continuously bear an overwhelming burden 
to get the Secretary to act. I think the Menominee example, for 
instance, on restoration and Public Law 280, is the kind of example 
the burden a tribe has to meet, and why the burden should be on the 
Secretary. You have the Solicitor's office, the attorney general, 
Bronson LaFollette of the State of Wisconsin, all saying there was 
better than a reasonable case that restoration, in a sense, voided 
Wisconsin's 280 jurisdiction over the Menominee. 

But using the burden of proof that the Executive used through 
the Department of Justice, the Indian tribe could not carry the day, 
when most reasonable people would have given the Indian tribe 
the benefit. I also think this incorporates rules of construction used 
by the Supreme Court in Indian treaties and agreements. Indian 
people are entitled to the benefit of the language. It should be the 
Government's responsibility to show the opposite. 



196 



Mr. Meeds. Whatever the justice or injustice behind it, the present 
situation is that certain groups, tribes, bands, have not been recog- 
nized. They have at least not shown they meet any one or more of the 
criteria which was proposed in the Jackson letter, or additionally, the 
tw T o additional criteria which you set forth here in both (A) and (G). 
(A) and (G) as I see it, are new. 

Mr. Axexander. Correct. 

Mr. Meeds. What do you think of a recommendation by this Com- 
mission to establish a system and a time frame for recognition so 
there could be a concerted effort to give those groups, tribes or bands 
who seek recognition, a forum before which they could present their 
evidence. Within a specified time, the group would be recognized or 
not recognized by that forum. So, in effect, cve^body would be 
recognized until they are proved not to be recognized. 

I have personal antipathy or reluctance to, in effect, say everybody 
is included until they are excluded. I think the thing should be exactly 
the opposite: the present status should be maintained until and unless 
the criteria or criterion for recognition is established. 

If there is no objection from the Commission, 1 would ask you to 
draft an alternative recommendation which would establish a system 
for tribal, group, or band recognition and a time frame or method for 
granting such recognition administratively. 

Mr. Alexander. I think what we were talking about, and our 
thinking is still somewhat vague in this area, is an administrative 
procedure. I think the point we were trying to make is that in fact 
nothing would change until there is Secretarial action, until there is a 
submission to Congress for additional appropriations, but what we are 
talking about is a presumption when the Indian group comes in, in 
whatever manner and into whatever forum, there is a presumption via 
the statement of Congress in favor of recognition unless the Secretary, 
or whatever administrative agency it is, shows there should not be 
recognition for failure to meet certain broad, general standards. 

The presumption, I think, is fairly important. 

Mr. Meeds. I view that, Paul, as a mandate for inaction. 

Mr. Alexander. It could be tied in the system you suggest as a 
time frame for secretarial action and so on. 

Mr. Bruce. Mr. Chairman, would you change the alternatives 
established here 

Mr. Meeds. I am asking the members of the staff to draft an alterna- 
tive recommendation which we can accept or reject alongside of the 
present recommendation which is made by the staff when we meet at 
the later date to make our definite recommendations about what the 
final report should contain. 

Mr. Yates. Aren't you really asking for a time period? Really, 
what we are doing is sa} T ing let them come in by a certain date. All 
the witness is indicating is the staff wants the opportunity for non- 
recognized nations to file. What you are saying is let them file but 
let them come in by a certain date. 

Mr. Meeds. Yes; by a certain date and with the burden of proof 
being on them rather than the burden of proof being on the adminis- 
trative agency, whatever it happens to be, to show they are not 
recognized. 

Mr. Yates. How difficult is proof? 



197 



Mr. Alexander. Proof is not difficult in the sense it does not exigt. 
Proof is difficult in terms of the economic legal, historical resources 
available to the individual groups, that would come under whatever 
procedure we adopt. 

Mr. Yates. You are saying proof is difficult? 

Mr. Alexander. Proof is there but it is difficult to obtain. That 
is the distinction I wish to make. 

Mr. Meeds. I might disagree with you very quickly. I think, for 
instance, the Lumbee Tribe which is now Euorjiederally recognized!, 
could come in under (G), showing two contracts with the Department 
of Labor for CETA programs or for receipt of grants under the Indian 
Education Act of the Office of Education, and qualify very quickly. 

Mr. Alexander. The circumstances vary between these groups. 

Mr. Dial. We are not exactly nonfederally recognized. Where you 
say the Lumbees are nonfederally recognized, if you don't qualify it 
aren't you overlooking the 1956 legislation? 

Mr. Meeds. You will have to refresh my recollection. 

Mr. Dial. That was Federal recognition of the Lumbees in 1956. 
That was not for the Bureau services. 

Mr. Meeds. That would be another of the criteria under which the 
tribe could then qualify. 

Mr. Dial. I did not want the record to show that the Lumbees 
were not federally recognized, because if you say that and let it go 
at that, you are saying the Congressmen in 1956 did something but 
they didn't know exactly what they did. 

Mr. Yates. I asked about difficulty of proof, but there is more to 
this than difficulty of proof. There is a question of who do you prove 
it to. Who do you propose to prove it to? Do you propose proof be 
made to the BIA, the Secretary of the Interior and congressional 
committees or a separate forum? How do you propose to dig up the 
proof? Do you propose the nonrecognized tribes be given the material 
assistance with which to find and present their proof or will they 
have to do this on their own? If they are as impoverished as your 
testimomr seems to indicate, they won't be able to do this. 

Third, the chairman indicates there is a question of time frame here. 
W T hat is an appropriate time frame in order to provide the proof? 
What kind of forum do you have in mind? Do you propose Congress 
set up a separate administrative forum to hear this just as they did in 
connection with Indian claims before the Indian Claims Commission, 
or the Foreign Claims Commission for foreign claims? How do you 
propose this be done? 

Mr. Alexander. In the proposal we were making, and I will have 
to distinguish between the two, I guess coming off of the notion of the 
lack of resources among the individual group we were leaving the ad- 
ministrative procedure within the Department of the Interior and 
focusing on the resources available to Interior, to determine the proof, 
which is part of shifting the burden on them. 

If we were to go to a situation where the tribes bore the burden of 
proof and the Secretary is in a sense in an advocacy position 

Mr. Yates. For or against? 

Mr. Alexander. It would seem in that kind of administrative pro- 
cedure he would be representing the opposite point of view which I 
think would be inappropriate — it would be a conflict of interest. 



198 



I would go for the administrative procedure outside of Interior. That 
there is a lot of thinking that has to go into an alternative. 

To be honest with you, we have not addressed all of the permuta- 
tions as to whether or not Interior should through grant-in-aid provide 
for historical research for a period of time. 

Mr. Yates. Isn't this of extreme importance? 

Mr. Alexander. Oh, yes. 

Mr. Yates. If, in fact, the Commission does approve a time frame, 
the chairman seems to have suggested, it becomes of extreme impor- 
tance to lay out a program of assistance, if you will, to your non- 
recognized tribes who want recognition. It seems to me, that carries 
with it the necessity for an appropriate form with which to present 
their petition after they have been fortunate enough to be able to dig 
up the proof that will give them the opportunity to be recognized. 

I don't know whether the Commission can do this or whether it is 
up to the task force to do this. 

Mr. Taylor. I would like to respond to that a little bit. We have 
here our preliminary recommendations covering a broad scope of 
things. I made this comment with respect to another recommendation 
and we have been making it all along, sort of disclaimers, getting our- 
selves off hooks. But 1 would like to say I think there is a lack of ad- 
dressing the mechanical procedure by which this thing could proceed. 

I don't think it would be very difficult at all. To me, my notion 
on it would be a group that considers themselves to be tribal would 
submit a petition to the Secretary of the Interior. This assumes 
Indian Affairs stays in Interior. Submit a petition to the Secretary 
for recognition. If they can meet and show evidence of any of this 
criteria, the Secretary should recognize them. The legal burden should 
be on him to recognize them. If he denies recognition, a provision for a 
hearing before a Board of Hearings and Appeals or whatever, a hear- 
ing examiner-type mechanism, would be provided within this agency. 

Mr. Yates. Can you tell us how many of the groups that you know 
about could easily meet one or more of these criteria? 

Mr. Taylor. I cannot answer that question. I was not involved 
with task force 10. Frankly, I do not know. They have identified, I 
believe it was 74 groups they feel have some tribal backing or history. 

Mr. Alexander. The problem we face as a staff at this point, is 
that the task force 10 did not get into any of the mechanics of any of 
the recognition procedures. The general recognition scheme you have 
is our thinking beyond the task force. What the task force did, as 
Peter said, is something we have to take many steps further. 

Mr. Taylor. I feel developing the mechanical procedure would be 
very easy to do. In fact, I think I have just laid it out. With the right 
of appeal to either a three-judge court or the U.S. District Court; 
from an adverse order out of that Board of Hearings and Appeals 
there could be judicial review. 

Mr. Alexander. There have been possibilities, and we have been 
talking about burden of proof which many of us perceive as a problem, 
that a tribe coming in only has to be able to meet a preliminary burden 
of proof and then the proof shifts to the Secretary. 

There are a number of interim notions we could work out for you on 
alternatives. 



199 



Mr. Yates. You have indicated a tribe received recognition, in 
this letter to Senator Jackson, how man;, were turned down? 
Mr. Taylor. I don't know. 

Mr. Yates. It is something we ought to find out. If any were turned 
down and the reasons for turning them down. 

Mr. Taylor. There was resistance to the Passamaquoddy. That 
required a lawsuit. There has been resistance to the Stillaguamish, 
which are now being recognized for the first time. 

Mr. Yates. Assuming more than one was turned down, do they 
have any right of appeal? Can the}' go to court and ask for recognition? 

Mr. Taylor. Apparently they can. The Stillaguamish actually filed 
a suit and Interior has acceded. To me, I would have questions about 
it. It is a matter of political discretion. 

Mr. Yates. If it is a fact the} 7 can go to court and obtain recog- 
nition, why don't they do so? Why do we have to set up all of this? 

Mr. Alexander. Going to court will only answer one part of the 
question. It also contains the disability for many of these groups 
that they do not have the financial wherewithal and the access to 
attorneys to litigate these cases which may require going way beyond 
the Federal District Court level. 

But once the recognition thing is acknowledged by a court, and 
oftentimes it does not come up squarely, in the Stillaguamish situation, 
it comes up with relation to hunting and fishing rights. In Maine, we 
are talking about getting the Department of Justice to intervene in 
the case. The extent of that recognition, what it means in terms of 
status, is left completely open. 

We are suggesting a combined administrative procedure that in 
essence takes two steps. One is the initial recognition question and 
the second is what are the components of it? That second thing 
would still be necessary. 

Mr. Yates. You are going to have to provide some kind of assistance 
whether they come before the Interior Department or the court, 
aren't you? 

Mr. Alexander. Absolutely. 

Mr. Yates. One of the fundamentals is to provide the material 
assistance to prove their rights. 

Mr. Deer. I would like to speak to the point of the burden of proof 
and respectfully to disagree with you, Commissioner Meeds. I feel it 
is a tremendous burden on the tribe to take on the Department of the 
Interior; take on the Congress. I don't know exactly how much it cost 
the Menominees to carry on the battle for restoration, but I know it 
was thousands of dollors. We marshaled the best talent, legal talent, 
the Native American Rights Fund, the Wisconsin Judi-care under 
OEO, and without this excellent legal assistance, we w T ould not have 
gotten anywhere. 

I feel there are a number of tribes that have been denied recognition 
that do not have access to legal help, that may not catch the fancy 
of some foundation or other group ; I feel even though we have made 
excellent argument on all of our points, we still have not prevailed 
in some of our arguments in the Department of the Interior which 
gets into our next point about construction. 



200 



I hope the Commission will take a stand on this particular point. I 
feel tribes do need help in historical research and legal research and 
the burden of proof should not be on the individual tribe or group, 
but there should be some mechanism worked out whereby the De- 
partment of the Interior or whatever Department it is, has to assume 
the burden of proof. 

I think the Federal Government has more resources than the Federal 
tribes. 

Mr. Meeds. I am not necessarily saying the machinery set up 
should not provide funds and historical research and other things, 
which might be required to establish identity as a tribe, a group or 
a band. But I am suggesting that we establish a mechanism and a 
timeframe in which we are going to either recognize people as tribes, 
groups, or bands, or we are not going to. We must get some finality 
to what is the group of specially recognized people. We can't let this 
thing drag on forever with the burden of proof being on the Federal 
Government to show they are not furnishing services to certain people 
because. 

That is all I am saying. I hope in drafting the alternative recom- 
mendation, the staff knows that I am not trying to necessarily limit 
the group, but I am trying to establish a procedure and a timeframe 
in which that recognition would take place. 

Mr. Taylor. There is no difficulty at all in drafting an alternative. 
There may be a problem in fixing some sort of time limit. My inclina- 
tion is against a time limit. I don't know what the feeling of the Com- 
missioners generally would be. 

Mr. Dial. Mr. Chairman, I believe it is a matter we cannot settle 
this morning or today. By the next meeting in January 1977, we need 
to have a meeting right away with the staff and come up with some- 
thing concrete, ma} T be with task force members of 10, and bring some- 
thing concrete to the next meeting to vote on. Maybe several different 
plans. 

Mr. Alexander. No problem at all. 

Mr. Dial. That way we can work it out. But I think we need to 
work it out as much, as possible so that staff will have some ideas on 
what to work on. 

Mr. Taylor. I would like to conclude that comment on the time 
limit. I believe part of the problem is some tribes are so isolated they 
do not know what is going on. In fact, Chuck Downs, over here on 
my right, has been doing research on a group called the Tunicas in 
Louisiana. They were apparent!}' not known to exist down there until 
very recently. But on an investigation they were clearly an Indian 
tribe. 

Mr. Dial. They were included in the report of task force 10. 

Mr. Taylor. Yes, they were. My point is, some of these people are 
so isolated they are not aware of time limits. Second, I think the 
mechanism we are talking about is not complex. In fact, I believe it 
is extremely simple. It is not like the Indian Claims Commission. We 
are not having to set up special boards or anything. 

But the other reason, and this goes back to your question, Mr. 
Yates, as to why we should adopt these criteria. Frankly, I think the 
Secretary of the Interior needs help. He stretched himself when lie 
came up with the five. That was brand new. 



201 



I think frequently the Secretary takes criticism on situations where 
it is not quite fairly laid on him. I am certainly no advocate for 
Interior, for the Secretary, but here is a situation where there are no 
congressional guidelines for him to follow. He reached into some prel l y 
wild authority to come up with these positions he has. 

I believe a little congressional direction and help would be very 
helpful to the administration of his office, as well as helping the Indian 
people involved. 

The Snyder Act certainly authorizes expenditures for the benefit of 
Indians, but the fact is, it was really adopted more to resolve a 
procedural problem that existed in Congress on appropriation matters. 

I don't understand the exact mechanics of the problem, but ap- 
parently appropriations bill could be blocked by a single objection. 
The Snyder Act was intended to get around that problem. 

Mr. Yates. But the language is not so limited. I don't think that 
has been the limitation the courts have placed upon it; has it? 

Mr. Taylor. I think you are probably right. The Ruiz case that 
dealt with on or near reservation — the Snyder Act does not authorize 
a recognition type thing. 

Air. Yates. Of who is an Indian to be recognized? 

Mr. Taylor. That is right. I think that is what we are trying to 
deal with here. 

Mr. Meeds. For the purposes of getting at least the alternative 
recommendations framed, I would suggest a time period of 5 years. 
The whole recommendation may be turned down, I don't know; but 
I would suggest 5 years. I would also go beyond that and ask that the 
recommendation contain a method and timeframe and criteria under 
which the tribe would then recognize its own members. We would 
then have a method for determining who is presently nonrecogiiized 
or recognized as tribes, bands or groups, and a method under which 
tribes can establish their own membership. As you can see, I am trying 
to get some recommendation, which will give some finality to what 
we are doing here. 

Mr. Yates. Do we know, or do you know the monetary value of 
the services being lost, in services to nonrecognized Indians? What are 
they losing that is obtained by the recognized Indians? 

Mr. Alexander. I cannot give you a dollar figure on what it is 
exactly the}' are getting. To say what they are losing is hard to know, 
because in the views that I have heard, there is no indication that those 
groups on the east coast particularly, wish to have each and every 
component of Interior services. So until that is known on a case-by- 
case basis — that is what we were talking about previously on the 
negotiation out of each individual recognition framework 

Mr. Yates. What is the value of being recognized? 

Mr. Alexander. The value of being recognized would certainly be 
expanded beyond what they are getting now. What they are getting 
now relates to manpower programs, Department of Health, Educa- 
tion, and Welfare, title IV type programs, ONAP type programs, simi- 
lar programs. It would not have a lot to do with any of the funds to 
support governmental institutions. That, in many of the cases, may 
not be desired and may not have anything to do with tax immunity, 
which is another factor, that would fall into this package. 



202 



It has nothing to do with resource development, resource expansion, 
technical assistance. It will really vary substantially depending on 
what group we are talking about. 

Mr. Yates. I still don't know that you answered my question. 
What is the value of recognition? 

Mr. Alexander. The value of recognition is access to a range of 
services not currently available. Two, the political denomination and 
protection a tribal group receives in that recognition framework, 
having to do wkh their tax status, their governmental status, and the 
full range there. That may also vary from State to State. 

Mr. Yates. Would it be fair to say this would involve a tremendous 
amount of monetary value? 

Mr. Alexander. It could involve a terrific amount of monetary 
expenditures. I could not project that with any specificity what that 
would be. 

Mr. Stevens. I think this is a fundamental point. There is a resent- 
ment on the part of nonfederally recognized Indians, in that the} r 
need to be merely recognized as Indians just for the purpose of being 
Indians. The implication that because the Bureau of Indian Affairs 
does not have enough money they should be refused the special status 
of just beiftg known as Indians is rather inconceivable. But that is the 
case. That is one of the main resentments of nonfederally recognized 
tribes, that the Bureau of Indian Affairs has the right to determine 
whether or not they are Indians in fact. This is like somebody being 
refused the right to be German or Irish or something. There is some- 
thing other that I think needs to be expressed on this particular 
subject. There appears to be developing a kind of situation which, 
since the early sixties, since certain services began to be extended 
through other agencies, many people have been discriminated against 
as groups. Because in programs for minorities, for instance, I think 
Commissioner Dial ought to speak to that, some services, social types 
of services and other types of programs, poverty programs, and so 
forth, that started in the sixties, have been extended to Indian people 
who are not federally recognized, and when you refuse the right to be 
an Indian, then your particular group is denied the right to have these 
programs merely on the basis the Bureau of Indian Affairs has refused 
to recognize you. 

What happens is, an Indian group in a certain area that is not 
federally recognized, is put in the position of not being able to have 
this service separate and apart as an Indian because they relied on the 
Bureau status. Yet, in fact, it doesn't make any difference in the 
budget. In fact, that budget will go to that particular State anyway. 
All they would receive by this is receive those funds separate and 
apart because they are Indians. 

That does not have to do with the recognition of our people, federally 
recognized people, as political entities in which we prefer to be recog- 
nized through our tribe. It is a thing that is compatible if you could 
take it apart. 

Mr. Dial. I would like to concur with what our Director, Mr. 
Stevens, said. Congressman Yates, if there were no funds involved at 
all, not one dime, Indians would be very much concerned with recog- 
nition. When you leave the Congress, if you do some day, suppose you 
had no retirement, you would still like the recognition of knowing that 



203 



you served in the Congress. Yet there is no monetary value placed on 
it, without retirement, let's say. 

We are very much concerned about recognition, the subject of 
recognition. Too, you don't know what future years will bring. It is 
hard to say what recognition will bring 10 years from now or 20 years 
from now. Certainly I would not see it hurting anyone. It would not 
have any damaging effects. And, too, I don't see recognition breaking 
up the U.S. Government. It is something the people have earned. 
It is really nothing to be given. 

Mr. Yates. I am not talking in terms of whether it is given or 
whether it has been earned, Commissioner. What I sense from your 
answer is that there are two parts to this; one is recognition as being 
part of the Indian people, and second, it may have monetary value in 
the programs that are being made available to recognized Indian 
tribes throughout the country. 

Mr. Dial. You are on the right road. 

Mr. Meeds. Would it be fair to say in terms of Commissioner 
Yates' question, that if services which are presently available to 
recognized tribes were to be extended to all individuals and groups, 
who at least, conceivably could qualify under the criteria set forth in 
this recommendation, that we are talking about increasing appropria- 
tions and availability — at least availability of funds — by somewhere 
in the area of double to 50 percent? 

Mr. Taylor. My reaction to that is, I don't believe that would be 
the case at all. The one we mentioned, these population figures, 
before — I wanted to comment on that. 

Mr. Meeds. I think that is what we have to deal with. We are 
dealing now through the services of the Department of the Interior 
with approximately 500,000 individuals who are recognized as Indians. 
I think by common definition, there are approximately 500,000 
people who are not recognized, even though they may be members of a 
recognized tribe, but are somewhere in urban settings or otherwise. 
There are those who are or who could conceivably qualify as members 
of presently recognized tribes, and those who have not been recognized, 
and we are dealing with another 500,000 people there. 

If you made the same programs available to all of them that are 
presently available to the recognized groups, the demand would 
double. But clearly that, I don't think, will occur. There are not 
twice that many who are going to ask for this. 

Mr. Alexander. I don't think doubling is quite accurate. 

The reason is, there are a number of programs that go that are 
available currently; that go through States and various other organi- 
zations. What would happen with those moneys? I cannot say whether 
that is 50 percent of the moneys that would be needed, or 70 percent, 
or what have you is that they would be redirected; some, a signifi- 
cant portion of the funds are currently being expended by the United 
States. 

It is oftentimes a question of who controls those funds. Does the 
tribal group control those funds or do they go through various mecha- 
nisms, CETA consortiums, State setoffs? Who gets the administra- 
tive expenses to run the programs. I think doubling would be a high 
figure. 

Mr. Meeds. I was not in my calculations dealing with those 
amounts. Many of those programs are being made available to the 



204 



group we are talking: about, the 500,000 who are not presently re- 
ceiving benefits. I am generally speaking about the appropriations 
which Mr. Yates' committee suggests for the Bureau of Indian 
Affairs, which is somewhere in the area of $400 to $500 million. 

Mr. Yates. It is over that. It is more than that. It is over $1 billion. 

Mr. Taylor. Part of that includes tribal money. Appropriations 
are needed to authorize the expenditure of judgment funds; but thai 
is a side point. 

The other element, I agree with what Paul has just said. The point 
is, I think most of these tribes on the east coast, you are not going 
to be bringing in the same kind of administrative structure. I don't 
think they need superintendents or area offices. It appears what they 
are asking for appears more related to education funds, health, and 
manpower training. 

Mr. Meeds. Funds they may be receiving right now. 

Mr. Taylor. Right. So I am not sure of the amount we are talking 
about, but nowhere near double. In fact, I question, in view of the 
kinds of services they are asking, I doubt if it would be one-third 
or more. 

Mr. Alexander. It was our view that until each individual tribe 
and the United States sat down and defined what that relationship 
would be, the total economics would not be known, and that is the 
reason we went to the notion of having the Secretary specifically, 
based on the agreement between him and the tribe, go to Congress 
with an additional appropriation or supplemental appropriation if 
that was necessary; that trying to take into account whatever expan- 
sion of the pie is necessary, Congress would have decisions before it 
on that and not be committing itself in this package to a complete 
unknown, but would have another opportunity to deal with specifics. 

Mr. Meeds. Do I understand you to be saying it would be very 
difficult to put a price tag on the recommendation? 

Mr. Alexander. Exceedingly difficult. 

Mr. Taylor. I would like to ask my colleague a question openly. 
Mr. Langone at the Library of Congress is preparing a statistical 
survey of Indians, which 1 think includes poverty level, this kind of 
thing. Paul, would this help put a monetary figure on what we are 
talking about? Would it aid any? 

Mr. Alexander. It would aid some. It would be projections out 
of the studies done by task force 10. But I keep having to modify 
this. It would onlv be projections, to get some ballpark figure, if you 
will. 

Mr. Meeds. Have we exhausted that subject? Can we move now 
to your recommendations for action, other than the one which we 
have just covered, which is the recommendation for further 
recognition. 

Mr. Alexander. That is all we have asked you to act on at this 
time. Just going back to the first one of the recommendations on page 
12, which has nothing to do with the monetary component or the 
political relationship between the United States and the group, and 
gets to Commissioner Dial's point and the point Ernie Stevens was 
making, to clear up the notion that if you are not a federally recog- 
nized Indian you are not an Indian. 

It is a policy statement the Commission would recommend to 
Congress. I read it once, I can read it again if you wish. 



205 



Mr. Meeds. No; that is all right, 

Mr. Alexander. To acknowledge the existence of Indian people 
generally. That is an important emotional point in Indian country. 
1 cannot stress that enough. Yon gentlemen would have had to have 
listened to the individuals come up and say it over and over and 
over again, with deep-felt emotion. 

Mr. Meeds. I see a recommendation at least a finding, the Indian 
Claims Commission deals with the issues other than land claim s. 
Would you go into that a little, please? 

Mr. Alexander. What page are you on? 

Mr. Meeds. I am on page 3, about the middle of the page. 

Mr. Taylor. Mr. Meeds, that is a finding taken from task force 
10. I frankly am not sure what all they have in mind. There have 
been claims put before them based on deprivation, or denial, or health, 
or education benefits. 

Mr. Meeds. This is not a recommendation? 

Mr. Taylor. It is a finding taken from that task force report. 
If you could wait a coup'e of minutes for the answer, I would like to 
confer with someone from task force 10. 

Mr. Alexander. Everything preceding page 12 is summarized 
from the task forces. In some cases task force 9, task force 10, or 
task force 5. As a staff, we are not recommending at this time, any of 
those specific findings or recommendations be adopted. W^e felt it 
was important to get the general policy parameters established and 
then go back and deal with the various specific things the task force 
may have said. 

Mr. Meeds. Are there further questions of this panel with regard 
to chapter 12? 

Mr. Bruce. We are coming up with another administrative pro- 
cedure to cover the seven or five standards now set up? There is a 
procedure for recognition? 

Mr. Alexander. Yes. 

Mr. Bruce. And we have it there in that first paragraph, in the 
background? Administrative device used by the Department of the 
Interior to delineate which America Indians shall receive the services 
and the protection of the Department. That is a device used now and 
that device w T as used, I guess, as far as the Passamaquoddy case was 
concerned. 

Mr. Alexander. One of these is the nature of what Congressman 
Meeds has recommended, we have also suggested shifting burdens of 
proof within an administrative framework, that there are various 
alternatives that could be worked out on time restraint^. 

Congressman Yates points out about the substantial lead-up time 
that Indian groups and resources that will be needed, by these Indian 
groups before the mechanism could even be started. The 5-year thing 
that was mentioned might be appropriate once the mechanism is 
started. They may need to have a leadtime of 3 to 5 years with sub- 
stantial resources before tribes could even trigger a mechanism. 

We will try to go through all of these issues and lay out alternatives 
consistent with the notion contained on page 12, the first recommenda- 
tion which is, that it be the policy within, the trust obligation if you 
will, of the United States to extend recognition. 

Mr. Taylor. We will go back and provide these alternatives and 
administrative procedures or mechanisms. What I want to see today 

82-749 — 77 — vol. 4 14 



206 



is some sort of consensus of policy that should be recommended. The 
specifics can be ironed out later. 

Mr. Dial. One important point while you are working on this. 
You ought to keep in mind during the 5-year period that you don't 
put any tribe in a worse position during the 5 years than they are at 
this particular time. 

It is very important. 

Mr. Alexander. I understand, Commissioner Dial, and we will 
seriously think through all of the potential problems on any specific 
time frame. There are many. And we will give you our suggestion^ oil 
those time frames. 

Mr. Meeds. Are there further questions? 

Mr. Bruce. The Department of the Interior has the right now to 
withdraw recognition; is that right? 

Mr. Tai lor. I don't believe they do, Commissioner. Congress has 
that. What Interior has done, and this is related to a different point, it 
goes to tribal government, they have withdrawn recognition of tribal 
constitutions. They have occasionally refused to recognize certain 
elected tribal officials. But they have no power to withdraw the 
recognition of a tribe per se. 

The other issues I have mentioned go to problems of tribal govern- 
ment and it is one of the points we were addressing the other day of 
limiting the Secretary's authority on the internal affairs of tribes. 

Mr. Alexander. I mght mention the authority to do what the 
Secretary has occasionally done in tribal elections and so far this 
is extremely questionable. Extremely. And that is a mild statement. 

Mr. Bruce. I recall the Passamaq noddy case where we worked 
hard to assist those people and where we were turned down by the 
Secretary and we proceeded anyway. 

Mr. Taylor. I think the same problem exists with the Stillaguamish. 
Morris Thompson favored recognition and was vetoed by the Secre- 
tary for at least 2 years. In fact, the Stillaguamish had to go and file 
their law suit. 

When confronted by reality, the Secretary did it. 

Mr. Meeds. Are there further questions regarding chapter 12? 
If not, thank you gentlemen, and we will move to chapter 9, Social 
Services. 

I think we are close enough to the hour of noon. We will recess and 
resume with chapter 9, Social Services. 
[Luncheon recess, 11:50 to 1:30 p.m.] 

AFTERNOON SESSION 

Mr. Meeds. The Commission will resume its hearings. The first 
order this afternoon will be a presentation of chapter 9, Social Services, 
by Pat Zell. Please proceed, Pat. Please give us an overview of the 
entire chapter, including recommendations which we could then discuss 
in greater detail. Any Commissioner should feel at liberty to stop 
Pat and ask questions at any point. 

Dr. Zell. Commissioner, the main area I was covering — social 
services — deals with the placement of Indian children and the whole 
area of health services delivered to Indian people. The area of child 
welfare placement in social services is an area of critical concern to 
Indian people. If I may frame the issue, most Indian reservations are 
served by State social service agencies. 



207 



When a social service worker is called on the reservation to take a 
child out of a troubled home, a temporary placement of that child is 
made very frequently off the reservation. What happens is, the child 
is no longer on reservation property and comes under the State's 
jurisdiction. 

The end result is many, many Indian children are placed in non- 
Indian homes permanently, and separated from their culture, families, 
and society. The recommendations that address this issue would call 
for tribal court jurisdiction over the placement of Indian children. 
Where that is not possible, and where a specific child would come under 
State jurisdiction, and it was a State proceeding of placement, that 
the tribal council would be informed and would be part of the de- 
cision as to where that Indian child would be placed. 

Mr. Alexander. This is on pages 5 through 7 we are talking about. 
I might mention this section is treated as a jurisdictional issue by the 
task force on jurisdiction and is backed up by a survey of 18 States 
conducted by the Association of American Indian Affairs on the child 
placement, adoption, and foster care practices in States with significant 
Indian populations and also statistics and testimony collected in field 
hearings or from State social service agencies. 

One of the best set of statistics comes from the State of Washington, 
in terms of the data collection system, which I believe was produced 
for its testimony on the subject area. 

Dr. Zell. The next area is health, and I refer the Commission to 
page 39 of the section on social services. The major findings and 
recommendation in the area of health are drawn from the results of 
task force 6 and task force 11. At the time those two task forces sub- 
mitted their reports, the Indian Health Care Improvement Act had 
not yet passed Congress. So an analysis of the act and its impact on 
the delivery of health care services and the health status of Indian 
people is not analyzed in detail in either of the reports. Because of this 
situation, we feel it is critical Indian people and the Commission have 
time to analyze this. 

Mr. Meeds. Could I ask you to back off and give us a general 
overview of the entire chapter, which would include such things as 
what task force reports are included, what areas of concern were 
addressed, before you start getting into the specifics of the recom- 
mendations? 

Mr. Alexander. This is a general chapter that comes from at 
minimum at least four to five task forces. It deals with education, 
health, State social services. Within the health framework it deals 
with alcoholism, drugs; it also deals with some information on cor- 
rections which were pointed to by at least two task forces. So within 
those two subject areas, we have broken down the recommendations 
from the various task forces. The major sections are health and educa- 
tion. 

You will notice in this chapter there are substantial gap areas that 
are not covered by any of the task forces. The whole system of State 
and social 

Mr. Meeds. What are those substantial gap areas? 

Mr. Alexander. The whole system of State social services, and 
how that impacts, and what the problems or the benefits, conceptually 
at least would be, is not treated by any of the task forces in a com- 
prehensive manner. 



208 



The issue of juvenile delinquency, juvenile services, outside of 'the 
child placement area, is not treated comprehensively by any of{tht 
task forces. Our own view is in alcoholism, mental health/drug abuse 
area, the treatment by the task forces was substantially insufficient. 
The treatment by the task forces in those areas dealt with funding 
and mechanics of some of the existing programs and did not get into 
the basic conceptions of causation, mental health theories, alcoholism 
theories. 

We view those as substantial gap areas. 

Mr. Meeds. Were the task force reports in these areas finished? 

Mr. Alexander. All 11 task force reports have been submitted as 
finished. Within the State social services framework, the whole wel- 
fare system, the BIA welfare systems, State welfare systems, prac- 
tically no material is contained in this chapter on that area. 

Mr. Meeds. How do you plan to augment if you do the final report 
of the Commission to make up for those so-called gaps? 

Mr. Alexander. It varies in each area. In welfare, which we dis- 
cuss on page 2 of this chapter, what we have asked for is direction to 
staff to go through our files and existing research outside of the task 
force's, and basically make a determination whether, in fact, we can 
with the staff and resources and the existing research, fill that gap. 
There is some material available in the files. We have not had the 
opportunity to determine whether or not that is tillable. 

My guess is that this is going to remain an unfillable gap. Part of 
that comes from, and I want to make it clear, I don't think this is an 
excuse for the task forces but it is in the nature of an explanation, the 
organization of the task forces which was such that things fell through 
that could have conceivably been covered by three or four task forces 
which in the final result were covered by no one. 

In the area of juvenile services, I think it is our view at the moment, 
that that area, juvenile corrections, juvenile services generally, is one 
which without substantial additional resources and field experience 
that we probably cannot cover, we will have to acknowledge this as a 
limitation of the report. 

Ms. Deer. Can you tell us if there has been any review or analysis 
of the current literature in these areas of health, delinquency, alco- 
holism, and so on? 

Mr. Yates. Are we talking about the Indian children and Indian 
problems on the reservations themselves or throughout the country, 
or where? 

Mr. Alexander. We are talking about both. To deal with problems 
of delinquency, in my view you would have to treat them separately, 
one in a reservation setting and what the resources, particularly in 
terms of how the law is written, in terms of is there a gap between 
general Federal law and tribal law in the area of juvenile delinquency, 
particularly the tribes that operate under 25 CFR; for example, in 
the child placement area. We treat it differently in terms of on reser- 
vation or off reservation. 

The numbers require us where there is a significant identifiable 
social problem, with approximately one-half million people residing 
off reservation, to deal with those situations pragmatically in a 
separate solution area. 



209 



To answer your question, Commissioner Deer, the health task force 
did a general literature survey. I would say the alcoholism and drug 
task force collected a lot of materials. That analysis, if they did it, is 
not reflected in their report. It is our feeling in the alcoholism/mental 
health area there is a significant amount of material and research that 
exists that could provide additional bases for Cbmmission action. We 
have not — I reiteriate — had the opportunty in many of the gap areas 
to make an actual determination of what exists outside of the Com- 
mission. To some extent, we have a notion of what exists in the task 
force files as they were delivered to us. 

Ms. Deer. That was my reason for asking the question. I feel 
there are many studies in these areas and that one of the tasks I was 
hoping would have been completed by one of these task forces would 
be to have an analysis of these materials in one place for all of us to see. 

I realize again there is a short amount of time. I know I would be 
interested in seeing whatever analysis you would have done at this 
point. 

Mr. Alexander. I mentioned the health task force specifically. 
Although we have a bibliography attached to a number of chapters 
in the report itself, there is no way other than where it is specifically 
mentioned in the report where it infrequently is, to tell in fact how 
much of those bibilographies, those materials, were in fact utilized. 

Other reports are extremely detailed in integrating support and 
resource material throughout the text of the report. You can get a 
fairly good idea of what has been used and what has been surveyed; 
but there is a wide range between those task force reports in quality. 

This whole problem is most negatively reflected in these reports. 

Mr. Meeds. Does this task force cover education also? 

Mr. Alexander. This chapter does cover education; ye?. 

Mr. Meeds. Maybe we could take these things by general headings 
and have you give us the general recommendations in each area. 
Education, mental health, if any, alcoholism, if any, juveniles, if any. 
Are there any other major areas covered by this? 

Mr. Alexander. Corrections. 

Mr. Meeds. Why don't we start with education? 

Mr. Alexander. Page 40 begins the chapter. Page 50 has the 
recommended Commission action. What we have done in the education 
section is similar to what we have done in the chapters we have been 
discussing the past 3 days. We have laid out a number of general 
principles in the education area, which if utilized as direction for the 
draft of this section, we would then go back and incorporate specific 
iindings and recommendations. The thrust of the education section 
which comes out in large part from task force 5's report, but also 
significantly comes out from the direction taken by the individual 
tribal reports submitted to us and the stands of national Indian 
organizations taken on education generally, is that education should 
be controlled by the tribes and Indian communities. 

If you had to say one thing about the material that was representa- 
tive of this section, that was the major theme. That means the funding 
to those entities, participation in the local community in control of 
what in fact happens in those schools. The additional components 
relate to increased training opportunities for Indian educators, 
curriculum development, college students, and so on. 



210 



But the major premise or thrust of this chapter is control of educa- 
tion by Indian people. 

Mr. Meeds. Should that control be subject to any kind of require- 
ments for any prescribed courses or standards of achievement or 
delivery by either the State or Federal Government? 

Mr. Alexander. By either the State or Federal Government? What 
I gather from the task force report is there is some disagreement on 
that point. One view is that the education of Indian children should 
be a partnership between tribes and the State. The other view which 
I believe is the view the task force report officially takes, is that the 
relationship should be between the Federal Government and the tribe, 
and that the Indian community or tribe should have significant input 
in developing or designing the curriculum and the standards that be 
applied in the local schools. 

I guess the caveat to that is because people move from one school 
system to another and have to get into higher education institutions 
and the like, that the same kind of system where States work out 
what they are going to accept from each other and the same accredita- 
tion mechanisms for accepting and acknowledgment of a degree 
granted by an Indian school to be utilized to go to Harvard or UCLA 
or wherever, that whole mechanism would be somewhat applicable. 
And, clearly, of course, in the Federal utilization of funds there are a 
nbmber of guidelines, be they personnel, be they others, that have 
ueen attached with frequency by the Federal Government and by 
this Congress in the utilization of Federal funds. 

I don't conceive of tribal control in this context as a totally un- 
fettered apparatus, but more as removing the State primarily from 
interaction and taking off the administrative overheads which are 
necessary to run the local community schools, and having the tribal 
relationship and education be one to the Federal Government for 
running their school system. 

The Navajo situation is most often cited where the tribe has created 
an education institution. There are a number of experiments going 
on there which have been doucumented in the task force report as 
well as other reports. 

Mr. Meeds. I see recommendation No. 6 here relates to develop- 
ment of an accreditation system, and recognition by Federal and 
State governments that Indian schools are not subject to State regula- 
tions. That doesn't square with what you have just said. 

Mr. Alexander. I think the concept there, particularly in relation 
to curriculum development in the teaching at traditional schools 
within those local systems, doesn't necessarily read that the Federal 
and State governments recognize it to be a mandatory recognition. It 
is a question of the same kinds of systems that have worked out for 
accreditation. If those standards that are developed to meet the 
local needs and controls are acceptable to a particular university 
system, they will recognize and acknowledge it; if not, those two insti- 
tutions negotiate and recognize what changes have to be made. 
In the University of Maryland, in the State in which I live, they 
established certain graduate schools which were not accredited. 
Antioch College of Law in the District of Columbia has gone through 
a several year process of obtaining accreditation. 

But the concept here is there are many things unique in the indi- 
vidual Indian communities that wish to be integrated into the school 



211 



system. Navajo medicine men, if you will, the use of traditional 
crafts and culture as part of their curriculum. Those things generally 
cannot come in under States standards of accreditation. 

I don't think the notion at all, and I can be corrected on this, is 
to get away from quality but to redefine quality in a local, meaningful 
context . 

Mr. Meeds. What if that is not meaningful in terms of participa- 
tion as citizens of the United States? And these should he Indian 
people. 

Mr. Alexander. I am not sure I follow the question; I am sorry. 

Mr. Meeds. Let's assume there are certain basic communication 
skills which are required for people to hold jobs in our society, for 
people to exercise their rights and prerogatives as citizens of this 
Nation in voting-, in participating in self-government, and other 
things. Let's say that an education system decreed by a local school 
board, an Indian controlled school board — and 1 am all for Indian- 
controlled schools boards, incidentally — does not require those 
standards be met. Let's say they are just minimal. 

Would you suggest this Commission make a recommendation which 
would not require those basic standards to be met, not only to these 
people as Indians but as citizens of the United States? 

Mr. Alexander. I think this gets us back to our discussion of 
Saturday, and the first offer of principle in tribal government, we 
suggested, as staff, that the evidence is fairly overwhelming which 
is the presumption should be that Indian people act in a reasonable, 
rational and just fashion. If it turns out Indian-controlled education 
somehow does not equip Indian people to function effectively, Con- 
gress retains the power to act. 

However, I would suggest within existing law attached to some of 
the programs we funded, and I am a little fuzzy in this area, we 
have as a government, required certain standards to be met in the 
use of Federal funds. Most of the education moneys we are talking 
about at this point are Federal moneys. 

There is no showing, there is no evidence I am aware of in the 
Indian controlled schools that are operating around this country to 
suggest the possibility that Indian people seeking to control their 
education, seek to provide anything but meaningful education. That 
education might be somewhat different than the county of Prince 
Georges would decide to maintain for their people, but there are 
divergences between all of the education systems in this country 
and what their emphases and focuses are. 

There is, however, on the other side, a lot of evidence to show 
that even though there have been improvements, and signilicanc 
improvements, in educational status over the past several decades, 
that there are substantial problems in the delivery mechanism for 
education for Indian students under State and county control. 

My answer would be the presumption is — Indian people will act 
in their best interests and their best interests are clearly to provide 
the most effective education they can. 

Mr. Whitecrow. This subject of education has been a large 
subject very close to my heart and very definitely, I think Indian 
controlled schools is an outstanding idea within those areas, whereby 
we have those schools presently established. However, when you 
start looking at turning over all schools as an example to Indian 



212 



control, we must be a little bit realistic, I feel, in this regard. Unless 
we are looking at setting up separate individual boundaries for 
tribes, we must realize these young Indian people and adults alike 
are going to be subject to education, are going to have to be trained 
and they are going to be living within the entire continental limits of 
the United States and they are going to have to be educated to the 
point, with quality education, that would allow them to compete 
individually and collectively out here in the general society. 

Take a look at title IV, (A), (B), and (C), take a look at the Johnson- 
O'Malley program, take a look at the Bureau Schools, both on and 
off reservation schools, you take a look at the higher education 
programs that are available and if we are talking about tribal sov- 
ereignty, I think we have been in violation of this particular aspect 
of it for many years. 

Now, as I understand this total report, we were looking at returning 
sovereign rights of tribes and laying down the groundwork with 
hopefully a recommendation from this Commission to the Congress 
whereby those funds currently provided to fulfill those social services 
we are talking about here to the tribes; and if so, those moneys should 
go through the tribes. Currently, individual school districts are making 
application through many different avenues to get Johnson-O'Malley 
money, title IV money, 874 money, and if we are really in effect talking 
about tribal sovereignty, all of the funds the Federal Government is 
providing to fulfill these obligations to these tribes should, in my 
opinion, go to those tribes, be broken down by population, and those 
individuals who are citizens of those tribes develop those relationships 
with those tribes and go through their tribal government when they 
want assistance, thereby requiring all of the public school districts 
who are utilizing 874, title IV, J-O'M moneys, according to the tribe 
affiliation of their students, negotiate with that tribe for reimbursement 
for delivery of education facilities and services to those tribal members. 

I think this is the only logical concept if we are in effect, talking 
about fulfilling our obligations, fulfilling treaty obligations to tribes. 
It must be funneled and centralized back through that tribal govern- 
ment, rather than having this maze, and I say a confused maze today 
by all of the various school districts and departments of education of 
the many States in addition to the Federal Government, thereby 
laying down the rules and regulations that those moneys be set aside 
to go through that individual tiibal agency's office. And then, as a 
tribe, if it so desires, to contract under the 638 public law. 

Then, they in effect would control the education because when you 
control money, you control education. That is my concept of really 
in effect returning self-sufficiency, self-determination and funneling 
those controls back through the tribe. I don't see that in here, Paul. 
I may be wrong, but I don't see it. 

Air. Alexander. That would be consistent with the principle I 
am referring to that is essentially contained in No. 1 on page 50. 
That is an extrapolation of that and that would get more into detail 
than we were suggesting at this time. 

Mr. Taylor. Commissioner Whitecrow, if I can be redundant of 
Paul, essentially what you have said is along the lines the task force 
5 report recommended and also the plan we are trying to put out in 
extremely brief form here. 



213 



Our proposals track exactly what you arc saying. It is to get the 
money directly to the tribes. 

Mr. Whitecrow. 1 could not read that flow. 

Mr. Taylor. It is rather vague because of the way we summai ized 

it. 

Mr. Whitecrow. What I am saying here is a school district, wher- 
ever it may be, if it has a certain number of Indian children today, 
they just say "are you Indian," and they send these various little 
forms home and the parents say, "Why am I getting this?" All of a 
sudden the superintendent of the school says I have got to find out 
how many Indian children I have in our school because I can get 
Federal moneys if I have Indian children. 

The parents themselves, up to this point, 99 percent of the parents 
I have talked to have no idea why these requests are sent home through 
the students, and the only real change that I can see that would really 
bring this about is if we are talking about tribal sovereignty and ful- 
fillment of Federal obligations to the tribe. Then the tribe should fcel] 
us how many members they have, the demographics of their popula- 
tion, statistics, et cetera, and then they in effect practice self-determi- 
nation. Because they will know where their students are, where their 
members are, where they are going to school and they can look for- 
ward to really negotiating contracts with those various school districts. 

Mr. Taylor. We are saying two things here. No. 1 : The tribes be 
authorized to operate their own school systems. That was one point. 
The second point which I am now just realizing }^ou are talking about, 
is as far as Johnson-O'Malley 

Mr. Whitecrow. Taking care of those children away from the 
tribal area. 

Mr. Tailor. The tribe w T ould be holding the purse strings, negotiat- 
ing with the school system as to what would be provided. 

Mr. Whitecrow. Yes, that is how I see it. I don't know how the 
rest of the Commissioners see it. But that is the way I see it. Those 
tribal leaders I have talked to have all indicated to me they want that 
responsibility as government officials of their tribes. 

Mr. Yates. The last conversation was to the effect, the tribal 
leaders want funds not only for children on the reservations but oft 
the reservations. How far off the reservation? Suppose they live in 
the cities? Can the parents of city Indian children send their children 
to Indian schools on the reservations? 

Mr. Whitecrow. I don't see anything that would prohibit that if 
they so desire. But if the parents of those children in the city school-, 
if those schools were to receive any assistance, the} r would negotiate 
with the tribe of those students. It would create a little bit greater 
administrative workload. 

Mr. Yates. Yes, it would. 

Mr. Alexander. That gets us almost into the whole off-the- 
reservation chapter. I think it is fair to point out there is some conflict 
in this area. The task force 8, which was basically urban and non- 
reservation Indians, the report has been somewhat criticized by a 
number of the urban Indian groups who would rather see money go 
directly to the urban Indian groups for negotiation on some issues, 
rather than a passthrough from the tribe. 

There is not a clear mandate when you are going off-reservation to 
Chicago as opposed to the Gallup-McKinley School System where I 



214 



think there is much more consistency of view. Many of the urban 
concerns were raised after the task force report was in fact submitted, 
thai is the off-reservation report, and we on the staff have not totally 
worked out the differences 100 percent. There are options in that area. 

That is an area where there are at least two viewpoints. 

Mr. Meeds. Could I ask a question at this point? Do I understand 
there are only two positions? No. 1, that funding and control of 
education for off-reservation Indian children be asserted through the 
tribes themselves, or, No. 2, through urban Indian organizations? 
Are those the only two alternatives? 

Mr. Alexander. The third alternative I mentioned earlier a 
feeling, at least on some persons' part, that there be a coordinated or 
cooperative arrangement between the tribe and the State oiganiza- 
tion. I am not necessarily sure the urban position is one of total con- 
trol but at least increased input and control for certain components. 

Mr. Meeds. Let's be specific. Let's take the Chicago school sys- 
tem. Let's assume there are 4,000 Indian children in the Chicago 
elementary and secondary school system, which I am sure there are. 

Now, are you suggesting the direction for education of those 4,000 
children in the Chicago school system be through an urban Indian 
organization or through assertion and funding by tribes to which 
those children may belong? !s that what this report is saying? 

Mr. Alexander. I don't think that is what this report is saying. 
I think it is saying there needs to be significantly increased input in 
terms of the utilization of those moneys that go to the school system, 
because there are Indian children in there. 

The mechanism for the input is to have the funds pass through 
the tribe. That is one alternative. Clearly there is the notion that 
the generalized advisory committees that surround the use of some 
of the money we are talking about are not a mechanism that provides 
for significant and substantial input into the decisionmaking process 
of the local school district. When you do have Johnson-O'M alley 
mone} r that is to be used for supplemental education and not for 
prime education, that you get the effect of courses dealing with cul- 
ture, tradition, and history, if you will, that the advisory committee 
system generally is viewed as a failure in the education area. 

We, as a staff at this point, to be very honest about it, are not 
taking a specific position on what these various mechanisms could 
be. We are recommending as a general principle on tribal control of 
most education moneys and a significant input. Clearly in the situa- 
tions where you are talking about a few Indian children, or even a 
significant number of Indian children, hundreds and perhaps thou- 
sands of miles away from the reservations. W^e have not worked out 
all of the specific permutations. 

What we are talking about is general policy now. 

Mr. Yates. Does the report try distinction between funds for the 
education of Indian children and funds to the tribes for Indian health 
clinics? Should the money for Indian health go to the tribes, too? 

Mr. Whitecrow. We are getting into an area I am really being 
pushed on back home, and if I may, I would like to expound on this 
a little bit. 

Here we are, and we have completed now a management review of 
the Bureau. In that management review, that review was done to 



215 



reflect the allocation of allowing of tribes to participate in the Self- 
Determination Act, thereby developing the budget processes for that 
tribe at the very lowest level. 

The only way that the Federal Government can really in effect, 
concur with that budget process as I see it, is thai they know how 
many people are going to be affected. As I see the budget process today, 
the Federal Government has no idea really about where these [ndians 
are, how many there are, and who is an Indian, et cetera,. 

I know definitely of many school superintendents who have senl 
letters home to parents saying, "Are you Indian?" Even if your folks 
were scared by an Indian a hundred years ago, you are part Indian, 
so we can get some money in from this title IV for our school disl rict. 

I think by going through the tribe, and we are laying down a process 
of recognizing tribes, then by going through that tribe, a total realistic 
population; actual population, can be developed allowing the Federal 
Government to make a determination as to what are those responsi- 
bilities and really in effect, once and for all, fulfill those responsibilities 
monetarily to those tribes in the field of education, and in the field of 
health, and without that specific knowledge done at the tribal level. 

This is one of the things that has really, in effect, torn many of our 
Indian people away from their tribes. They don't go back to their 
tribal government any more. In many cases, the Federal Government 
has relegated tribal organization to the level of a civic organization or 
fraternal or sorority order. Indian people have, in effect, forgotten 
their relationship with their tribal government in many instances. 
Therefore, they say I am an Indian. What does it mean to be an 
Indian? Are you affiliated with the tribe? Do you have any tribal 
contact? 

If we are, as taxpayers in this Nation, looking at efficient utilization 
and delivery of money, we must go through that tribal government 
to fulfill our relationships. The tribal governments should be the ones 
to tell us, or to tell the Government, how many Indian people they 
have. 

I personally felt w r hen we started this study, that maybe the Federal 
Government is already providing enough funds to fulfill the respon- 
sibilities by treaty and other relationships; if somebody could just 
find all of the pigeonholes where these appropriations are hidden in 
this maze of confusion we have. 

I think with this BIA management study, it really brings it home. 
That is why I support that management study so well. I think that 
in itself, will reduce the number of Federal dollars that will help us in 
this. It will identify the Indians once and for all and help erase this 
mark we have got against our country in letting our Congress fulfill 
those responsibilities; once we determine who the Indian people are 
through our tribes. 

Mr. Taylor. I am not this familiar with the task force 8's report. 

Mr. Whitecrow. Let me say that I will speak to the same thing 
on health. 

Mr. Taylor. I can see some real problems on the mechanical 
delivery of this money at the urban setting. I share the concern you 
are speaking of though. All of a sudden, Indians are climbing out 
of every crack. It sort of is like with judgement funds — we had a 
situation reported in Montgomery County, in the Washington Post, 



216 



last week which I will retrieve off my back porch and add to the file, 
but there is a new appropriation bill which authorizes allocation of 
money for Indian study programs. If you have an Indian in your 
family two generations back, you qualify. The number of Indians, 
identified Indians, in Montgomery County, quadrupled, 1 think, 
as soon as that new formula was there. 

I do have trouble with the tribal control of funds in Montgomery 
County. Undoubtedly, the number of people out there are from a 
broad number of tribes. It would seem to me that would create 
genuine problems in administration of those funds, at the tribal level. 
I know the report here is saying tribes should have the right to create 
and manage their own schools, as far as the Johnson-O'M alley funds 
where the tribe prefers to leave their children in public schools, but 
assure they are given Indian courses and whatever other Indian 
programs are needed. 

The recommendation is the tribe manage those funds and negotiate 
directly with the public school system. So within the reservation area, 
the tribe would have total control, I would say, in the vicinity im- 
mediately near the reservation, the tribe would have control over 
those Johnson-O'Mallej'-type funds. 

The idea of identifying your own tribal membership to avoid this 
execessive number of people claiming to be Indian, with possibly no 
support at all — well, the identification of membership that Mr. 
Meeds was talking about yesterday, would lend some solution to this 
problem in the urban area. 

Mr. Whitecrow. An enrollment card, citizenship card, or some- 
thing. 

Mr. Taylor. I detest the idea of carrying a card. I am a card- 
carrying Crow or something. 

Mr. Whitecrow. Excuse me, Mr. Chairman, for dominating here, 
but this is a good point. At one of the presentations I made, 1 had a 
group of people when I was advocating, that we should identify our 
tribal members and our tribal members would like to be identified, 
if they had something that would say, look here, I can prove I am an 
Indian, because Indian is not right here in the color of your skin, it is 
in your heart and in your head, how you think, how you feel. 

One fellow jumped up and said, "What the hell is wrong with you; 
Indian people won't carry a card." I said, "The hell they won't. 
They carry their driver's license, and they sure carry their social 
security card." This can prove to somebody they are an Indian; 
they will damned sure carry that card, too. I really feel that. 

Mr. Taylor. I would stand silent. 

Mr. Whitecrow. I would carry my card. Many times I have been 
mistaken for a Chicano, especially when I grow a beard. 

Mr. Yates. How much money are we talking about here for Indian 
education? Has the task force estimated what it would be? Is it the 
same amount currently being made available for Indian education? 
Is it twice that amount; three times; what conclusion did you come 
to? And, how far do you carry the education cycle? Do you carry it 
from kindergarten through graduate degrees in college? What is your 
proposal? 

Mr. Alexander. The task force in a proposed piece of legislation. 
I don't have dollar figures, but this is the mechanism they are talking 



217 



about; it is the creation of a national trust fund for Indian education 
with appropriated funds, the income from such a trust fund then 
would be used to support education. 

Mr. Taylor. I would like to address the problem we were talking 
about earlier. I had a conference with Helen Scheirbeck. I am rather 
ignorant of the contents of that report. But 1 understand what is 
being proposed here, and what 1 would expect to develop as we de- 
velop this chapter, is first of all, whether or not a tribe wants to con- 
tinue its association with the State or public school systems would be 
made a tribal option. 

[f the tribe elected to set up their own school system, that would be 
their option. The proposal would also encompass as an option to the 
tribe, they could work with the school system in establishing cur- 
riculum and, let's say, accreditation. However, again, it would remain 
tribal option to totally exclude the State school officials if they so 
choose. 

I understand no recommendation is made on the accreditation prob- 
lem on the national agency that is proposed. I think we could build in 
some minimum criteria here as to the types of educational programs 
that are considered to be bare minimum. But the accreditation prob- 
lem does constitute a very real problem in the Indian education sys- 
tem, particularly in getting Indian educators. We talk about having 
Indian cultural programs in school systems, either public or Indian 
school systems. Man}' State requirements require a person to have a 
master's degree in education. What we wind up with are non-Indian 
educators teaching Indian people Indian cultural programs. It is an 
absurdity in itself. 

Many of our school systems provide courses such as auto mechanics 
and pounding out fenders. I know the high school I went to did. I can 
see no earthly reason why Indian school systems should not be able to 
accredit or establish as a course, basket weaving and beading and 
various other types of things. So the accreditation problem is a serious 
one. 

Air. Meeds. If I can stop you right there. I think you have come to 
a point where I can make it amply clear what I mean and then you 
can respond to what I am talking about. 

Yery good; they should teach courses in basket weaving and 
blankets and silversmithy, all of those things. That is fine. But the 
ba>ic and fundamental element of the education, whether it be on the 
reservation, off the reservation, whether it be Indian controlled — 
which I would prefer to see, if it is on a reservation — or non-Indian 
controlled, has to be to provide the basic fundamental education 
that it takes to cope in this dominant society as citizens of the United 
States. 

That is the point I am making. As long as that point is clear in the 
recommendations, and if it is not, 1 would propose it be made clear; 
I have no argument. I think it is beautiful to have them taught their 
culture and the additional things you would equate to pounding out 
fenders and things like that. 

1 don't think a lot of Indian people want to do that. They would 
much rather do a lot of things nearer then culture. But I personally 
insist that any education system is going to have to teach people to 
cope and to be productive citizens in this societ} r . 



218 



Mr. Taylor. I understand the task force report does in fact, in- 
clude this minimum certification. 

Mr. Meeds. I began to get a little antsy that it wasn't coming 
through in the recommendations; coming through by the staff here. 

Mr. Taylor. 1 think the major nroblem is escaping these inflexible 
State rules — I think we understand each other. 

Mr. Meeds. Right. And there clearly has to be some bending of 
the so-called inflexible rules which will allow the kind of thing you 
talk about, teaching Indian culture by people who are steeped in 
Indian culture and may not have a master's degree, may not indeed, 
have any kind of degree. 

Mr. Taylor. As a matter of fact, I would include that basic waiver 
on the basics of reading, writing, and arithmetic. Elmer Savilla, 
chairman of the Quechan Tribe, ran his own electronics store in San 
Diego for many years; he could certainly teach bookkeeping but he 
does not have a master's degree in bookkeeping, so some sort of 
system of certifying educators providing they have the ability to 
handle the course 

Mr. Meeds. That is what education or accreditation is all about ; 
isn't it? 

Mr. Taylor. Yes. But States are horribly inflexible about this. 

Mr. Meeds. I know. I have been through vocational education on 
this. We have managed to make some bending of an otherwise, 
inflexible system. As long as that basic concept is Kept in mind, I am 
satisfied. 

Mr. Yates. Let's get back to the money again. 

What is the recommendation of the staff? Is it to be from the Fed- 
eral Government, the Commonwealth or the State? What level? 

Mr. Alexander. As I understand it, it is entirety through the Fed- 
eral Government. The element I was about to get to, and it comes out 
in several places, tribal resources, be it from taxation or what-have- 
you, be also utilized in supporting education. 

Mr. Yates. W^ould this be an apportionment then between the 
Federal Government and the tribes of the education function? What 
about the States? 

Ms. Scheirbeck. I have a few comments. We have a cost analysis 
study of this but I would hesitate to talk about that unless you looked 
at the entire report. We said what it would cost in terms of the board- 
ing schools to do certain things, what it would cost in terms of title 
IV — that is not in the report, but it could be added. We have also, 
Commissioner Yates, done a complete biography of the literature 
survey. If someone would type it for us, we would be happy to add it 
to the report. That was one of your interests and would be one of 
ours also. 

I would like to make the point that all of the task force members 
agree on; that is, there is not any clear policy in Indian education. 
And we did propose a vehicle for getting clear policy and in that 
vehicle we have suggested a way for the tribe and the State to negotiate 
with each other. But the vehicle is the method to set standards in the 
policy to deal with things like the accreditation issue and other items, 
and I would encourage you to look at the proposed bill which is a part 
of the recommendation. 

I am sorry; I did not understand your question. 



219 



Mr. Yates. The last question was how will the money to pay for 
the education be derived; from the tribes and the Federal Govern- 
ment alone, or will the States make a contribution? 

Ms. Scheirbeck. We are suggesting the Federal Government con- 
tinue the compensatory type and supplementary efforts which they 
are now providing in Indian education. We are also suggesting tribal 
resources be added to that. We are suggesting States in revenues 
generated from tribes or Indian communities fund that money back 
into those areas for use in educational programs and purposes. That 
would certainly take some negotiations that we feel could be done. 

Mr. Yates. What would you do with a situation such as we 
experienced last year with the Chinle School, where they were com- 
pletely deprived of tax funds? 

Ms. Scheirbeck. We would look at that very closely. We used 
that school district to project the cost analysis. 1 happen to feel one 
would have to have a sliding scale wdiere a State and local school 
district on the reservation would not agree to put money up; and 
would have to ask the Federal Government to put up at least 90 
percent of that money. 

Mr. Yates. Won't the ultimate burden fall on the Federal Gov- 
ernment? 

Ms. Scheirbeck. Unless the Federal Government is willing to 
strengthen its enforcement powers, and I am sorry to say I don't 
think HEW is doing that very well, I think you are correct in your 
analysis. 

Mr. Yates. What would the States role be? 

Ms. Scheirbeck. We found it difficult to say what the State's role 
would be in Indian education. We surveyed all of the 50 States and 
that is included in the final report. We were not able to talk to you 
on that point; it was not clear what they said. I think the Federal 
Government has to decide what its policy is in terms of supporting 
Indian education. Are they willing to go 90 percent in some instances? 
If the State is not willing to put money up, are they willing to say, 
yes, States you have got to do it, at least 50 percent of this. 

I think Congress is going to have to look at that very hard. 

Mr. Yates. You are offering several proposals. But isn't your 
principal thrust a relationship between the Federal Government and 
the tribe and bypassing the States? 

Ms. Scheirbeck. We are talking about all Indians in this report. 
We are talking about tribes; Indian organizations. 

Mr. Yates. You propose bypassing the States then, don't you? 
Insofar as channeling the funds are concerned? 

Ms. Scheirbeck. Yes; but we have proposed an interesting role 
for the State and that role is really in planning, in assisting the tribe 
in planning, and information gathering. 

Mr. Yates. How does the State get paid? Out of its own funds? 
This would be the State's contributions? 

Ms. Scheirbeck. Yes. 

Mr. Yates. Do you have any idea of whether the States would 
approve this method of funding directly to the survey? 

Ms. Scheirbeck. I asked that question in the survey and inter- 
estingly enough, many of them said "yes". I cannot quote the figures. 

Mr. Yates. I find that somewmat surprising, I must say in all 



220 



frankness. I had the impression States were using funds originally 
intended for Indian children for other than Indian children. Now you 
tell us the States are willing to forego that. 

Ms. Scheirbeck. I am saying in the questionnaire, a number of the 
States said they would be willing to go this way. We looked at school 
finance formulas in a number of States, and we asked the question: 
Why couldn't Indian education be weighted in the finance plans like 
the handicapped is? And we got various answers from States; but I 
was also surprised by the answers. 

I might say in our public hearings where we had local at school 
superintendents and school board members testify, I asked that 
question. It may have been the audience, but they did indicate they 
would be willing to play the role I have described. 

Mr. Yates. I think that is fine. But I think the legislatures in 
these various States might have a different attitude. Do you believe so? 

Ms. Scheirbeck. I don't know, Congressman Yates. I am just 
beginning to work with the States. I am doing a dissertation on this 
subject. So next fall I will be able to answer your question a little 
more directly. 

Mr. Meeds. Wouldn't it be easier in terms of funding to break it 
down into two categories. In the first is Indian children on reserva- 
tions to whom the Federal Government presently owes, as far as 
I know , full responsibility for education with the States holding no 
responsibility, unless those children are going off reservation to 
schools which are controlled by local school boards. The second 
would be those children who are in the local school systems who 
may be Indians and who may be receiving some supplemental fund- 
ing such as Johnson-O'Malley, impact aid, Indian Education Act 
or otherwise, because the3 T are Indian? Isn't that a cleaner division 
so we can deal with not only funding but, with responsibility, with 
whether or not there will be Indian control or whether the schools 
are going to be controlled by local school districts? 

Ms. Scheirbeck. I think we were trying. Commissioner Meeds, 
to give all Indian communities more of an impact, more of a say. 

Mr. Meeds. I agree with Mr. Yates. My experience has been 
that States, by and large, except when they have assimilated Indian 
children into their school systems, have been very reluctant to do 
anything special for Indian children, let alone furnish the basic educa- 
tion for them. 

I think we are dealing in the real world here. If we set up structures, 
they ought to be structures with which we have some confidence 
and which will actually work. 

Ms. Scheirbeck. I have to say in reporting what Indian people 
told us, the majority of nonreservation people felt — and we said 
this in the report — the Federal Government has an obligation to 
educate them as well. 

Mr. Meeds. I am one of the people who has been asking for much 
more outreach by Johnson-O'Malley, Indian education, and other 
impact programs which indicate a Federal obligation. So I have no 
problem about that. 

But it gets to the point of wmat is the Federal obligation to 4,000 
diverse Indian children in the Chicago school system, wdiich is a 
system of 400,000 kids. And you don't use the same kind of mechanism 



221 



on an Indian controlled school board in Chicago as yon used on (the 
Navajo Reservation. 

Ms. Scheirbeck. What wo suggested on that was the compensa- 
tory moneys, only we would use the title IV model for those people 
yon are suggest ing, the compensatory education money, come into 
the local education agency but where that agency refuses to work 
with the Indian parent committee, that the law be amended BO that 
the parent committee could receive that money. We do have that 
kind of recommendation in the report. 

Mr. Meeds. So that would be for the Chicago schoo] system, the 
Everett school system; but for the Gallup school system you have 
to have another situation? 

Ms. Scheirbeck. That i> correct. 

Mr. Meeds. Because of the tremendous impact of Indian school 
children on that system? 

Ms. Scheirbeck. Yes. [ would like to correct one thing in the report. 
Two members of the task force did not recommend that XCOlK be 
abolished, and that is — it appears in the report. The Task Force 
member, Mrs. Loraine Miasiazek, made recommendations, recom- 
mended that XCOIE be abolished. The entire Task Force did 
not recommend that. 

That was only one member, Mrs. Miasiazek's recommendation. 
That should be reflected in the recommendations. 

Mr. Borbridge. As i oat her, some of the thinking pertains to the 
following: Starting off with the proposition, it is practical because 
you can identify due to tribal reservation boundaries or anything 
similar to that. The element of tribal control becomes a much simpler 
one to apply, and in that instance, you want tribal control. 

We have just discussed a variation of that with an infinite number 
of variables, which make it difficult to apply one simple structure to 
implement tribal control. And very likely there you are talking about 
what I would refer to as a spectrum of control possibilities. On the 
far end of the spectrum, we may be talking more about the right to 
participate due to one's status as the member of an Indian tribe 
through the tribal government. Another form of involvement may 
well occur through parent committees or similar entities. 

Is that basically what we are looking at here? 

Ms. Scheirbeck. Yes. 

Mr. Borbridge. The other thing I am concerned about is one who 
has >pent 12 years in secondary education, the matter of accountability, 
of how one assesses whether the goals set out have been achieved. I 
think the other Commissioners have been alluding to this. It would 
appear to me we are talking about the input in a circumstance in 
which we not only have a secondary elementary school situation, we 
have those goals which are usually associated with such institutions, 
where there are Indian children. We very likely have added elements 
of what we think the goals should include, because that school in- 
cludes Indian children. I guess that is another thing we are saying 
here, then. 

The usual goals and expectations that one would have of a school, 
a public school must necessarily be expanded because there are certain 
specific and unique needs that Indian people have that ought to be 
recognized in determining wdiere the educational process ought to go. 



S2-749— 77— vol. 4 15 



222 



I think the matter of accountability, measuring effectiveness I 
want to state from my experience that this whole educatiunal process 
is in a constant state of flux and change and reeval nation, and certainly 
one of the very pressing issues in all of education right now is 
accountability. 

Where are we going? I rather resent the articles "Why Johnny 
Can't Read". Jt kind of picks on those named John. 

But look at such articles. If one were to pick up the Post from the 
last two days, there is a quer} r about why young people don't coin:' 
out of school with a sufficient backlog learning of the kind that will 
help them in running a home, budgeting and purchasing a home, 
and so on. The point I am making here then, perhaps in a roundabout 
way, is this: the fact that Indian country is still in the process of 
determining what its specific educational goals are, how it can best 
achieve those, and how it can assess its effectiveness through a system 
of accountability itself, is in a state of flux. 

1 warrant what we find this year, and next year, would vary, and 
in so doing, it would do no more than to reflect what is occurring in 
the total system of education here in the United States. What I am 
saying is, the concerns are very legitimate. But we do not want to 
impose unreasonable, the expectations in assessing where we want 
to go in the education process. If we do, we are demanding of the 
Indian country what the United States is not able to achieve yet. 

Ms. Scheirbeck. We were extremely concerned and we did say 
in our report no one is closely paying attention to the quality of 
education that Indian children are getting. That bothered us very 
much. 

As I say, we have proposed a vehicle, that we had hoped would do 
something about this. 

Mr. Meeds. To summarize what I understand of 3-our recom- 
mendations, what we have talked about so far, is that Indian control 
can and should be exercised in on-reservation nonpublic schools; that 
Indian input can be exercised on off-reservation public schools through 
advisory groups who have some influence on the expenditure of 
Federal funds which are utilized for supplementary and compensatory 
programs. 

Is that an accurate statement? 

Ms. Scheirbeck. I think as far as it goes that is an accurate 
statement. 

Mr. Meeds. How would you flush it out a little more to fit at 
least the conversation we have had so far? 

Ms. Scheirbeck. I think the other thing we are saying in our 
vehicle is we would like the tribes and the communities, and we are 
defining community control as lower than the tribal council — we 
are talking about the communities — and we are saying in a number 
of those communities, the tribes, the communities and the States 
should have a way to negotiate with each other for public school 
systems, not just a BIA system. That is a part of the vehicle, that 
kind of element. 

If the tribe and the community opts not to do that, they would 
stay with the BIA system. So we have added the new dimension of 
moving into the public schools if the tribes and States 

Mr. Meeds. One question I have not covered so far. What are your 
final recommendations in this chapter with regard to boarding schools? 



223 



Ms. Scheirbeck. I would have to say the task force was divided 
on this question. 

Mr. Meeds. Have you read, Helen, this chapter 15? 
Ms. Scheirbeck. 1 have not seen it. 

Mr. Meeds. Are there other people who can respond to this? What 
recommendations, if any, are made with regard to boarding schools? 

Mr. Alexander. The primary thrust in this chapter at the moment 
on boarding schools, comes from the finding on Task Force Five's 
part^j tnat there is a substantial problem in the way that boarding 
schools, at least some boarding schools, arc being utilized. The maimer 
and form of the curriculum of boarding schools arc not geared to the 
population the boarding school has; which means children in some 
boarding schools, are sent there because they may have educational 
problems, they may have behavior problems that may require special 
learning skills, they may require certain psychological techniques and 
so on. The curriculum of the existing boarding schools are not designed 
to deal with the particular demography of the students that many of 
them are in fact getting. 

Boarding schools along the lines of the report, and to the extent 
they are to be retained, and some of them may need to be retained, 
some of them be geared to the social education schools to meet the 
specific problems that are being identified. 

The task force goes on in its report to indicate where possible 
boarding schools be turned over to tribes and indicates in its survey of 
boarding schools, that in fact, some of the populations — for Navajo, 
Hopi, et cetera — might in fact, support a school system within the 
reservation, and there be a movement away from the boarding school 
to special schools to turn over to the tribes. 

That is the direction we have adopted also. 

Mr. Meeds. You are suggesting that the curricula of off-reservation 
boarding schools is an educational curricula and many of the young 
people who are attending are attending not primari^ because of 
educational benefits, but because they may have social problems? 

Mr. Alexander. Or special education problems. 

Mr. Meeds. Or special education problems. And what we need to do 
is redesign the role of the present off -reservation boarding school. 

Mr. Alexander. At least some of them. There is some substantial 
Indian opinion out in Indian country that at least some Indian 
boarding schools serve very useful roles, but that you almost have to 
define the practices of that particular school. 

Mr. Meeds. And the use of on-reservation schools, boarding or 
otherwise, be increased to prevent 3 r oung people from having to be 
sent long distances to attend off-reservation schools. I am kind of 
glad to hear that. That kind of matches my own experience. 

Mr. Alexander. To cap that, when we were talking about juvenile 
delinquency for a brief moment before, in effect what has happened, 
given the hiatus of juvenile services, the boarding schools have been 
used in some cases as a dumping ground. 

Mr. Meeds. Are there further questions in the field of education? 

Mr. Borbridge. I am confident that this has been done, but 1 
will ask anyway. I assume the effectiveness of the off-reservation 
boarding school situation has been assessed as to its impacts on the 
family, social structure, mental health, and such other measurements, 
and with respect to some of the other unfortunate consequences that 
occasionally occur; is that correct? 



224 

Mr. Alexander. There is a theme that runs through the removal 
of an Indian child from its home and its cultural and social impacts 
on the child and the family remaining at home. 

Mr. Borbridge. Does the report comment as to whether these 
matters which seem so vital to the overall health of both the family 
and the individual child have been adequately met or somewhat 
inadequately, or very inadequately or how does the report gauge the 
response to this need? 

Mr. Alexander. The report, or at least some of the task force 
members are strongly opposed to the way many of the existing 
boarding schools are operated. The component on boarding schools 
is a fairly straight, nonemotionally written chapter. There are other 
reports we are familiar with which carry out the theme you are 
talking about in boarding schools. It is a fairly straight kind of report. 
The whole report is nonemotional. 

Mr. Whitecrow. After all of this discussion, am I correct in 
this understanding we are laying the groundwork here to allow 
Indian-controlled schools on reservation areas to be the guiding 
light, to be the educational programs on reservations? Now, I also 
understand in task force 5's report, they are recommending no 
further expansion of off-reservation schools? This would be schools 
such as Jones Academy, the Eufala, Seneca Indian School, Riverside 
School, such as this, in the State of Oklahoma. Also, am I correct 
in understanding a compensatory type educational program such 
as special impact, title IV, the Indian education program, the Indian 
Education Act, Johnson-O'Malley moneys, will be funneled through 
the tribes with those public educational facilities and negotiating 
with tribes for the funds to fulfill obligations to their students? 

Mr. Alexander. On the three points as I understand you raised 
them, the general thrust is for Indian-controlled schools. We, as a 
staff, in this document have not defined that as to whether or not 
that means separate entities within the tribal system. 

If you would go back to our discussion of tribal government and 
trust, our general thrust would be those are tribal decisions as to 
whether they set up a separate situation or whether that is under the 
tribe. The task force's view is there should not be an expansion of the 
negative components of the existing system; that you should not 
expand those boarding schools and those institutions that serve as 
dumping grounds. But there should be where those schools — if you 
want to take the Alaska situation for a moment. There may not be any 
other alternative. I don't know whether there is or not, other than 
boarding schools that would need to be expanded. 

You have to take a strong look as to what, in fact, that school is 
doing in terms of curriculum vis-a-vis the student population. 
I think that is the major thrust and not expansion. It really comes 
out of the criticism of the schools that are not functioning 
appropriately. 

Mr. Whitecrow. Are we leaving that aspect of planning within 
the educational department of this new recommended agency we are 
then looking at? 

Mr. Alexander. That is what the task force has done. We, as a 
staff, have not taken a position as yet as to whether it should be a 
separate corporation, as the task force has recommended, or whether 
or not it should come within the purview of an independent agency. 



225 



Our view was to wait until the independent agency thing was 
flushed out. 

Mr. Whitecrow. So we have more work to do? 

Mr. Alexander. We, as a staff, have not taken a position on what 
the physical location should be. We are recommending discussing 
what the policy should be. I am not sure I remember your third point. 

Mr. Whitecrow. Indian education. Impact moneys. 

Mr. Alexander. I think our thrust is to the extent possible, and 
certainly in the tribal situation, that those pass through to the tribe 
and that is a tribal negotiation decision. Helen's task force sets up a 
mechanism of how the tribe would interact with the county system or 
the State system. 

I am not sure what are the various different kinds of mechanisms 
that would be necessary for the urban and rural setting where there 
is not a tribal unit that needs several alternative type recommenda- 
tions. 

Mr. Whitecrow. I can see the possibility of a Colville member in 
Florida; a youngster in public school in Florida. Then how do we 
provide reimbursement to that school for that one tribal member 
attending that particular school district? 

Mr. Alexander. I don't think the staff has a unified position on 
this. You suggested earlier that the funds flow through the existing 
tribes. There are a number of problems with that approach. 

I think Congressman Meeds' suggestion of a school system that may 
have several hundred different students who are members of different 
tribes, that is what I meant when I said perhaps we could come back 
and recommend a number of alternative systems to deal with the set- 
ting where the particular Indian child is away from its tribal residence. 

Mr. Whitecrow. One of the inequities I see in the Johnson-O'Malley 
program, as an example, you must have a 10-percent enrollment that 
meets one-quarter blood requirement before a public school is eligible 
for those funds. 

Mr. Alexander. Oftentimes, we neglect in these discussions the 
other Federal programs that should be dealing with this. Johnson- 
O'Malley is a specific program and we all focus on it. But title I 
moneys that pour millions and millions of dollars into school systems 
that are supposed to deal with special needs, I don't think a school 
system should escape their responsibilities under either title VII 
moneys which are bilingual, bicultural moneys, or title I, ESEA 
moneys which are moneys that go for general target poverty popula- 
tions. The Indian children in those areas being counted for those moneys. 
It is an eas}^ out for a school system to say w T e don't have enough. 
But they are getting money which could also be utilized for special 
Indian programs, and that has to be focused in on. 

I think that is what Helen is in part referring to when she says 
OCK at the Department of HEW is not as effective as it should 
be in its overview of how title VII moneys and title I moneys are used, 
not to mention dropout funds under title VIII. There is a significant 
Indian child dropout problem. 

Mr. Whitecrow. Today we have Indian parent councils function- 
ing under the Indian education program that are not responsive or are 
unable to be responsive to delivery of these special mone}' programs 
to the students of those schools because in many instances, irate or 
radical type superintendents, functioning in those school systems, will 
not be responsive to parent councils. 



226 



Mr. Alexander. That is back to what I said before. That whole 
advisory council notion in the education areas always a serious 
problem in implementing suggestions. Helen's bill suggests where an 
advisory council is not able to get significant inputt here should be a 
trigger mechanism that puts those programs through that advisory 
council to give them some clout. That is one alternative; there may be 
others. 

Mr. Whitecrow. If this money could be funneled through the 
tribal government, that government would be responsive to that 
parent council. 

Mr. Bruce. I wonder if we cannot proceed with the recommenda- 
tions that are made, and at our next meeting get back to some of these 
things specifically. I have a lot of questions in my mind ; like, why the 
hell abolish the national Indian education S3stems because they don't 
like the people? How do you get around to making that thing work? 
I think there is a need for it; a lot of other things, too. 

I would like to move along and suggest we either give the staff some 
guidelines for coming back to us or some specific things that gives us 
also an opportunity to deal with them and have some questions and 
get the clarifications. 

Mr. Meeds. Would you like to proceed now with the field of health 
and let us deal with your recommendations? If you would direct us 
to the page 

Dr. Zell. I would ask the commissioners to turn to page 39 once 
again. I will repeat this for the record. 

Again, at the time task force 6 and task force 11 submitted their 
reports, the Indian Health Care Improvement Act had not passed 
Congress, so there is no in-depth analysis of that act and its impact 
on health care services to Indian people or how it will affect the health 
status of the Indian people. 

Mr. Meeds. Does that mean you are going to eschew any recom- 
mendations at this time? 

Mr. Alexander. There was a meeting with a number of the top 
agency officials at the IHS this past week. It was their position, and 
they had read the task force six report that most of the problems and 
recommendations identified by task force six were cured by that act. 

I am not convinced that is necessarily true. What we have asked is 
that the findings, which are identifications of problem areas, be 
adopted, if you will, or addressed by the Commission and that we 
come back after being able to do a detailed analysis of the potential 
of that act against the recommendations of the task force. 

We think it would be precipitous to analyze the task force report 
when there has been major congressional action in this area which the 
ta<k force just did not consider. 

Mr. Meeds. So you would, at our next meeting on January 6 and 7, 
be prepared to present recommendations for the Commission? 

Mr. Alexander. Exactly. 

Mr. Meeds. If there is no objection, we will pass over health until 
then. 

Dr. Zell. Mr. Meeds, what we plan to present are a few of the 
findings that a cursory analysis of the act are not covered by that 
act, problems that have not been addressed. We would like to bring 
those to your attention. 



227 



One of the major problems Indian people have identified 

Mr. Meeds. What page are you on? 

Dr. Zell. I was going to give you a cursory analysis. One of the 
major problems Indian people as well as State health eare officials and 
IHS officials have identified, is an area of confusion that exists, that 
is 1 J IS. It has never been clearly delineated although IHS is the 
primary health provider for health services to Indian people. 

The States act on this lack of definition by saying that IHS is 
responsible to provide health care and to be the primary provider of 
health care to Indian people, and in response to that they refuse 
service to Indian people. 

Mr. Meeds. You make that distinction between on-reservation and 
off-reservation? 

Dr. Zell. We found instances of State health agencies refusing 
treatment to reservation people or Indian people in urban settings 
where an Indian Health Service hospital or facility may be too far to 
go to in an emergency. The State would tend to say go another 50 miles 
down the road and get your treatment. 

We think this is an area that Congress must take some action to 
clarify both for the Indian people as well as for all of the health care 
providers that are responsible for providing health care. 

Mr. Meeds. I think we did address that question in the Indian 
Health Care Improvement Act insofar as, at least, these people may 
be eligible for medicaid or medicare. Now when you have others who 
are not eligible for that, that does present a different problem. 

Dr. Zell. There would seem to remain some unclear area. In our 
meeting with IHS officials, they felt they did not want to become the 
primary health provider to Indian people, and in hearings we heard 
the opposite from Indian people. 

Mr. Alexander. This also gets in a peripheral sense back to the 
notion of the Federal Government's role in discrimination in the 
delivery of health care services where there is eligibility along w T ith 
other citizens to Indian people. 

The task force was rather weak in its supporting documentation on 
the fact there are patterns and practices of discrimination, but one 
can certainly point to other studies which document the pattern and 
practices of discrimination — and the litigation that has occurred. We 
may have to make specific recommendations for more effective 
remedial action in this area. 

Dr. Zell. Other findings of the task force, I might point to, although 
they did not feel it was their position to draw conclusions, were 
numerous findings relating to the management of Indian Health 
Service. 

When we interviewed just last week with the Indian Health Service 
officials, they did not seem to feel there was any problem necessarily. 
Yet, when you look at the administration of services as well as the 
organizational set up, it seems clear there are management problems 
and those problems result in insufficient delivery of health care to 
Indian people. 

Mr. Meeds. I have a question which relates to all of the task force 
reports. They are all available now for Government printing, are they 
not? 



228 



Mr. Alexander. They have all been sent over to GPO for printing:. 
As I understand it, it will not be until January 12 when all, in fact; 
are off the presses and available. I might point out the vast majority 
of those reports went over the very first part of September. It has 
been a tedious process to get them through. 

Mr. Meeds. My reading of the Health Task Force report, al least 
to the summary of that prepared by the staff and our own staff, in- 
dicated positive information, conclusions, and other information on 
the whole question of drug abuse, alcoholism and mental health. 
My general question to you is: Do you have the resources, the time 
and the staff, to put together for the final chapter here, a compre- 
hensive set of recommendations with regard to those subject matter 
areas? 

Mr. Alexander. You are looking at the staff that can answer 
that. My conclusions in reviewing this report were much the same as 
your staff arrived at, and that is the incidence of alcoholism and 
suicide, and those problems being indicators of mental health problems 
are so major and so serious and Indian people point to the problem 
of alcohol as being a major problem and of major concern to them. I 
think this Commission report would severely suffer if we did not 
try to cover those areas. We are going to put intense effort toward 
doing so. 

Mr. Meeds. Very well. Are there further questions or further 
comment on the health section? 

Dr. Zell. I would like to put a bottom line. Many measures have 
been taken under the Indian Health Care Improvement Act to draw 
in tribal input, to allow tribal health authorities to slowly take over 
health services, to allow tribes to determine whether they want to 
take over the delivery of health services to the people living on 
their reservations or surrounding their reservations. 

We want to emphasize all of these programs or any findings and 
recommendations when they come up relating to alcohol and drug 
abuse, mental health programs. There is a strong feeling they should 
be tribally oriented and the Indian people are the ones who can best 
approach curing their problems. 

This would also entail bringing medicine men more into the de- 
livery of health care services. The task force report calls for an Ameri- 
can Indian Medical School, over which there is some debate. But 
the incorporation of Indian people into the process, the health proce>s. 
is of critical importance and that is one thing we have heard through- 
out all of the task forces. 

Mr. Meeds. If you read the records of the hearings and markup 
of the Indian Health Care Inrprovement Act, you will note that 
our effort to put increased emphasis on Indian medicine men and on 
establishment of an American Indian Medical School were somewhat 
thwarted by the legislative process. 

Are there further questions or observations by menbers of the 
Commission or the staff with regard to chapter 9? 

Mr. Alexander. There are two areas in chapter 9. The first I 
mentioned to you before, which was the child placement issue. I do 
not, at this point, conceive of us going beyond what is contained in 
the draft we presented to you other than for a text discussion. 



229 



The thrust of those recommendations are to beef up tribal systems in 
placement to give the tribe the right of intervention in off-reservation 
settings. So at least there can be tribal input into the decision, as to 
what happens to that child, and to functionally expand the tribal 
setting for jurisdiction of the tribal court over the child placement 
issues. 

I think the evidence we have collected is very clear. It is a very 
significant national problem, both in adoption and in foster care. There 
is something beyond the good faith of the States. There is evidence 
that some States — and I use the State of Washington as an example — 
social services have made significant efforts in the past 5 years to 
increase the placement of Indian children in Indian homes. However, 
they still have an 80 percent non-Indian placement of foster children 
and that is an improvement over a few years ago. That is the direction 
we are moving in. 

Congressman Meeds. May I make a suggestion with regard to your 
statement on page 5 on placement? As in other instances, we should 
recognize the wrongdoings of the white society against the Indians 
for lo — these many 3^ears. But we should also recognize that assimila- 
tion has not been the only reason for placement of Indian children in 
non-Indian foster homes. There are some very fine people out there 
who feel that they are not trying to assimilate anyone; but that they 
are trying to provide good homes for children. To say right off the 
bat that assimilation is the only reason for placement off the reserva- 
tion is, I think, an overstatement of the case. You might indicate 
there are some good but misguided people who have had other reasons 
for this. 

Mr. Alexander. One of the things we do point out, and I agree, 
there have been throughout the whole social service mechanism of 
private and public, good faith efforts, that have had negative effects. 
There is a serious lack of education. A serious, serious lack of education 
of people operating in the social work, psychiatric, et cetera, and 
police work that generally get involved, end up removing Indian 
children as to Indian culture standards. 

The assumptions are so often, sometimes from good people, com- 
pletely negative. Some of the litigation cases are absolute horror 
stories. I know Commissioner Deer could give case examples, and I 
could give case examples all day in this area if I needed to. 

Ms. Deer. Can you tell me if any of these materials, have ex- 
pression of opinion by various professional associations? For example, 
the Association of American Indian Social Workers, the Association of 
American Indian Physicians, the Indian Lawyers' Association? I 
think all of these topics are of crucial importance to us as Indian 
people, but we do have these professional associations and I certainly 
would be interested in hearing what their assessment is of the various 
findings in these reports. 

Mr. Alexander. The only one I am familiar with in terms of this 
specific component, has to do with a number of professional social 
worker organizations that are running programs particularly in the 
bay area and other places. Most of that has been problem identification. 

To go back to what has been decided yesterday in sending this 
report out in draft stage to people who are, in a sense, parties of in- 



230 



terest, those are certainly people that this component of the ceport 
should be sent to for their comments. 

Ms. Deer. I would hope this would be done. 

Mr. Taylor. With respect to this child placement, these recom- 
mendations are founded around a child placement group in the State 
of Washington. 

Mr. Alexander. The recommendations have been submitted in 
the Congress proposal last August. They track a piece of child place- 
ment legislation that has been worked on for several years. The 
National Association of American Indians in New York has been a 
leading group in this field. We have worked closely with them. 

Mr. Meeds. Further comments or questions on chapter 9? 

Mr. Alexander. There is one other area — corrections. We are in 
the same state with the corrections as we are with juvenile deliquency. 
In Task Force 8, Task Force 11, it was mentioned other task forces 
in passing said, in effect, this is a serious problem. There are not in 
our files, sufficient materials to make specific recommendations that 
come from the task force. There are, however, a number of inde- 
pendent materials; we would like the opportunity to go back and look 
through whatever we can, to see what we can come up with, some 
proposed recommendations. The one thing that needs to be said, 
I think, at this point, is there is a significant feeling in Indian count py 
that it is a substantial and major problem in the treatment of Indian 
prisoners in both the State and Federal penal institutions. 

Mr. Meeds. In the absence of any objection, the staff will be in- 
structed to go beyond the task force reports to try to provide for the 
Commission recommendations in the field of corrections. 

Mr. Alexander. We will try. 

Mr. Meeds. Is there objection? Without objection, so ordered. 
Are there further comments or questions with regard to chapter 9? 

Thank you very much for your report on chapter 9. I think we 
ought to discuss among ourselves where we are going here with regard 
to tomorrow and beyond that. We still have six chapters to cover. 
I would at least like to be excused at 4 o'clock today so I can get 
some work done in my office also. 

We will meet tomorrow morning in room 1114, Dirksen Senate 
Office Building, at 10 o'clock. 

The request today is for the request for the extension of time. 

Mr. Stevens. Mr. Chairman, yesterday Congressman Meeds 
made a motion, seconded by Commissioner Dial, and passed unan- 
imously, to permit the procedure which Indian tribes and organiza- 
tions, non-Indians, or anyone of interest could respond to a first 
draft. That first draft being due on January 6 and 7. We will put out 
a notice on that. 

I brought this up, because if we are going to have these various 
people respond to the first draft, it would necessitate a possible ex- 
tension. And, yesterday at the Commission meeting, the Com- 
missioners discussed the possibility of an extension of time. 

Mr. Meeds. Enlighten us all on the present legislative date-. 
. Mr. Stevens. The present schedule, under the legislation, reads 
generally, the final Commission report must be submitted to the 
President of the Senate and the Speaker of the House within 6 months 
after submission of the final task force reports. February 18, 1977 
would be the latest submission date possible. 



231 



If as we discussed yesterday, a 00 or 90 d;iy extension were granted, 
the final report would be submitted April 18 or May L8. Ob the basis 
of Congressman Meeds' motion, we worked out a schedule of what 
it would take to accommodate the review of the first draft. 

Then yesterday, the Commission approved a meeting date of 
January 6-7, 1977, at which time the first draft of the text and the 
specific conclusions and recommendations would be dealt with. 
Then under the motion, our staff would make revisions and the 
printed final draft would be mailed out by at least January 24. We 
would need at least 2 weeks for revision, printing time, and time 
required for mailing. People who are present here the Commission 
made a point of the fact they did not particularly want to have a 
hearing. They felt since people had task force reports to deal with 
that if they had the final draft, it would be far more significant to 
comment on the first draft. In their minds, that would be better 
than a hearing. 

We were also directed to categorize the comments as the}^ come- 
back. Then we would append them at the end of the final Commission 
report. 

With a February 23, final date for acceptance of draft comments, 
the Commission analysis of comments and appropriate revisions of 
the final draft and Commission approval for the report to Congress 
would take place approximately April 15. 

Then the final Commission approval would be May 28, 1977 — that 
is on the basis of the 90-day extension. The life of the Commission 
would not be affected, in that it still would end June 30, 1977. 

Mr. Meeds. Would it require additional funding? 

Mr. Stevens. It might possibly. W"e could use fewer consultants 
and make some savings, but it probably would not be enough if we 
extend the Commission that far. We will need additional funding — 
not be a large amount. 

Mr. Meeds. Could you give us some idea of what amount of addi- 
tional funding would be required? 

Mr. Stevens. Approximately $26,000. 

Mr. Meeds. What will be necessary then will be legislation in the 
very early days of the Congress extending not the lifetime, but some 
of the deadlines within the lifetime of the Commission? 

Mr. Stevens. Yes, sir. 

Mr. Meeds. I can only speak for myself, but in view of this addi- 
tional process, which I think is a good one, of circulating the report 
and getting comments on it from the field, almost all of which time 
would be required to get the thing out; to get the comments back; to 
give them meaningful consideration, and then prepare a final report. 

I would personally be prepared to support this in the House and I 
am sure Senator Abourezk is prepared to support it in the Senate. 
You must realize, however, we are only 2 of 535 and that might not 
happen. In the event it does not, we should have an alternative plan 
which we could follow in the event we are not successful in passing 
this legislation. 

Do any of the Commissioners have comment on the extension? 

Would someone care to put the new time schedule with the recom- 
mendation that legislation be sought to fulfill it, in the form of a 
motion? Do I hear a motion? 

Mr. Whitecrow. Mr. Chairman, I so move. 



232 



Mr. Bruce. Seconded, Mr. Chairman. 

Mr. Meeds. The formal motion is that the deadlines within the 
life of the Commission, be extended to provide for a Commis&iofl 
meeting on a first draft markup for January 6 and 7, 1977, staff revi- 
sions by January 24, which will provide a first draft wliich will be 
mailed to concerned persons, who will have 30 days to comment, 
brings us to February 23. That after that, and until April 15, there 
will be Commission analysis of the comments and revisions such as 
are necessary or voted, and a final deadline for the submitting of the 
final report to May 18, 1977. 

The Chair will put the question. All in favor of the motion of the 
Commissioner from Oklahoma, signify by saying "Aye." Opposed! no. 
The ayes have it. The motion is carried. 

Appropriate legislation will be sought to carry into effect the new 
schedule. 

Are there further shopkeeping matters? 

Mr. Dial. As it stands now, we only have one date on the schedule 
for meeting, January 6-7? 

Mr. Meeds: By its nature, however, there will be an additional 
one sometime after April 15 — excuse me, sometime after February 2 '>. 

Mr. Dial. You cannot establish those dates now? We will set 
those dates on January 6-7? 

Mr. Meeds. Right. If possible, yes. I doubt if we will have our 
legislation passed by then. 

Mr. Dial. But it won't happen before then? 

Mr. Meeds. No. 

The next order of business will be the question of resources. Ernie 
Stevens, chapter 8. Ernie, would you give us a quick overview of the 
subject matter covered? The task reports included in chapter 8 and 
the major recommendations of the report. 

Mr. Stevexs. The subjects covered are economic development, 
natural resources, specifically lands, land acquisition and consolida- 
tion, a utilization of tribal lands, the special problems of allottees, 
land leasing, agriculture, and grazing, forest management, firdierie-, 
minerals, and nonrenewable resources including minerals, coal, oil, 
enterprises, including private enterprises, joint ventures, tribal 
enterprises, resource inventories, environmental impacts, water rights 
including trust responsibilities, hunting, fishing, trapping and gather- 
ing rights. Taxation. 

The staff recommends the section on resources and the entire 
subject matter with its accompanying topics assigned to task force 7 
be reevaluated, reorganized and presented again for consideration at 
the Commission meeting in January. The Task Force Report did not 
collectively put its investigation into a proper historical economic 
context. 

Mr. Meeds. What task force does that cover? 

Mr. Stevens. Task force 7 predominantly. Although there was 
input from the jurisdiction task force and task force 1 also task 
force 9, and task force on tribal government. I felt the findings 
should have been put into a better historical, if not cultural, context. 
The task force did not substantiate its findings through the informa- 
tion gleaned from its extensive site visits. In other w T ords, it did not 
tabulate its report nor did it use the major effort of the report, which 
was to make site visits on 32 reservations. Yet in the text of the final 



233 



report, it did not use that information as a frame of reference, nor did 
it take the opportunity to prove it. It did not deal with cither man- 
power or housing which were specifically assigned to task force 7. 

The task force did not successfully complete its assignment, because 
it omitted recommendations. The recommendations have been con- 
spicuously missing. They seem to have been unceremoniously dropped 
or withdrawn, since there appears to be a pattern of studiously avoid- 
ing the recommendation after arriving at a conclusion. 

It started out by stating issues and coming to conclusions and then 
it just stopped there. I felt there were some recommendations some- 
where, but they were not turned over to us. 

Task force did not utilize the significant Indian opinion already 
published. Also, I would have to say in deference to the task force, 
that the files were not really organized a- well as they could have been. 
The gaps are in manpower, housing, community development, water 
rights, forestry, fisheries, minerals, land resources, infrastructure 
education, and examination of income and its distribution. 

Mr. Meeds. What else is there? 

Mr. Stevens. A couple of things. The report is too inconsistent to 
provide a basis for consideration. There was a short, rather well 
written section at the end of the report put together by Peter Mc- 
Donald. But it does not relate to the resl of the report. It is an ap- 
pendix. On that basis, I have asked the Task Force specialist why 
they did not bottom line their questionnaire. 

I have asked one of the attorneys to see if she will finish that section. 
It isn't going to take that much. 

Second, 1 have retained an economist who is going to help us inter- 
pret data. She and Ray Goetting, Chuck Peone and I can come up 
with a good report by January. We have gleaned some findings from 
their text, and from that we have itemized 10 things. That is page 53. 

The first is: Congress should address additional appropriations, 
including provisions for loans and equity capital, through both exist- 
ing and new legislation for the purpose of acquiring and consolidating 
formerly owned Indian lands within the exterior bounds of the reserva- 
tion in order to provide for the economic stabilization and future 
self-development potential of Indian tribes. 

The second is: Congress should make provision for the removal of 
legal obstacles to the full utilization of Indian lands, and provide for 
the alleviation of the special problems of allottees; that is, purchases 
of fee and allotted lands, consolidation of multiple and fractionated 
heirships, improvement of tribe's authorities over the Secretary of the 
Interior's discretion, removal of laws which obstruct exchanges of 
lands and/or sales of interest to allottees, possible reasonable restric- 
tion on inheritance, et cetera. 

Three: Land, agriculture, grazing; leasing and forest management. 
We have no recommendations at this time. 

Four: Nonrenewable resources, minerals, coal, oil, et cetera. We 
have no recommendations at this time. 

Five: Enterprises, private, tribal, joint venture. No recommenda- 
tions at this time. 

Six: The Congress should provide for tribal governments to receive 
adequate funds and technical assistance to more readily prepare 
themselves to develop tribal natural resource inventories, cope with 
environmental problems, water use and disputes. Tribal control of 



234 



these technical capabilities is essential to allow for long-range plans 
to develop a stable economy. 

Seven: Water rights. No recommendations at this time. There 
was no water rights report. There was one appended to the juris- 
diction task force, which for some reason, they did not think was 
completely adequate. 

Eight: Hunting, fishing, trapping and gathering rights, which 
includes treaty rights, State interests, trust relationships, role of 
Federal courts. No recommendations at this time. 

Nine: Taxation: Federal, State and tribal. No recommendations 
at this time. 

All of these were viewed from the context of the income they would 
generate for economic development. 

Ten: The Commission direct the staff to pursue further study and 
analysis of existing questionnaires, special reports, and other available 
data. An examination of such materials and reports will include: (a; 
an evaluation of the 32 tribal economic questionnaires secured by 
task force seven; (b) an evaluation of special tribal reports on eco- 
nomics and natural resources, that is, Northwest Affiliated, Crow, 
Standing Rock, et cetera. 

I might add, there is a special fisheries and forestry report coming 
in from Guy McMinds and Frank Archambeau and Walley Heath, 
which is in final draft. 

(c) An evaluation of existing and extensive files on economic 
development and natural resources which has not been utilized as 
yet. There is a rather large file and bibliography on this particular 
subject. Most of those subjects are very well documented and at this 
time, well organized. 

(d) Pending studies in contracting, budget, planning, fisheries, 
and forestry will be received no later than December 1, 1976. 

(e) An evaluation of existing economic and land data is presently 
being prepared by staff. 

Congressman Meeds. What you are telling us is, you don't feel 
at this time any posture to make your major recommendations 
because of the inadequacy of the task force report? 

Mr. Stevens. Yes, sir. 

Mr. Whitecrow. Ernie, can you give us any kind of feeling as to 
why this task force did not complete its work? Those people we 
selected for that particular activity were in our opinion, at that 
time, most qualified to do a job. Why did they not do their job? 

Mr. Stevens. I have no reason to change my judgment of them. 
They are three of the more able people in that field. Peter McDonald 
is chairman of the Navajo Tribe. He did put something together. 
Also, I think the recommendations are missing, but nobody will 
admit it. You can just read the report and tell that something is 
missing. For people who were talking in the beginning of the report 
about being scientific and all, the text of the report makes liberal 
use of "if one may assume" and so on. There is something missing 
there. I do not know why it is missing. 

Mr. Whitecrow. Mr. Chairman, this past summer I took it upon 
myself to do a little preliminary work in this specific field. I came 
across an opportunity that might be a feasible project and I turned 
this over to a staff and I don't feel enough work was done on this 
insofar as follow-up. We had a tremendous amount of work and this 



235 



is certainly no slam toward our si ad", but \ think it was an area task 
force 7 should have approached. 1 cannot sec any evidence thai they 
did. Insofar as the treaty relationships of our tribes are concerned, 
I personally made 4 contact with the World Bank to make some deter- 
minations as to whether or not the tribes individually could become 
members of the World Bank and become eligible for long-range, 
low-interest, developmental loans, such as to undeveloped nations. 

Initially, the vice president of the bank I talked with, said he did 
not think there would be any possibility at all. Then, alter I got 
through discussing the treaty relationships with him. he indicated 
there might be a possibility and they would have their attorneys 
look into it, and their attorneys did. He returned a call to me notifying 
me the attorneys felt as far as they knew at that particular time, 
the tribes would be eligible for membership in the World Bank, 
providing we could get the Congress to concur. 

Now, I think this is worthy of follow-up. If we are thinking of 
alleviating the drain on the taxpayer insofar as fulfillment of treaty 
obligations, I think this would be an avenue, whereby Indian tribes 
through their governments could take advantage of these types of 
loans and totally and fully develop their reservation areas. 

Mr. Meeds. Would he also suggest we deal with Indian tribes and 
nations through our foreign aid program? 

Mr. Whitecrow. That was a suggestion at one time. 

Mr. Meeds. Is the gentleman suggesting that? 

Mr. Whitecrow. Negative. I am not suggesting that. I am suggest- 
ing there may be a possibility the World Bank could take a portion 
of the load of the Congress, insofar as assisting tribes and developing 
their individual areas. I would like to get some feelings of the other 
Commissioners on this before I proceed with making a motion to this 
effect. 

Mr. Bruce. My own comment is, it sounds like a good idea. I think 
we need more information. Have you gone into this at all, Ernie? 

Mr. Stevens. Andy Anderson is doing something with that right 
now. But we would have to go into it further. 

Mr. Whitecrow. What I am suggesting here, I think our staff 
should do some further research in this area, and if it is possible, inas- 
much as our task force seven is quite incomplete and our staff is going 
to be doing some additional work to tr}^ to complete that report, 
I think that is an area our staff could spend some time on and give us 
some recommendations. 

Mr. Stevens. The person I have retained has worked in the area 
of the World Bank in relation to Third World countries. It is part of 
her discipline. 

Ms. Deer. It seems we might look into this; what the repercussions 
might be; it is an interesting concept that should be explored. I would 
like to ask if there has been any thought now on the part of staff 
members to include some cases that illustrate, particularly in this 
area of resources, the violation of trust, the conflict of interest, the 
neglect and so on. It seems to me, in this whole area of resources it is 
extremely vital to the survival of our Indian tribes and that the way 
the trust has been administered and so on has created a lot of problems 
over the years and to me, if you could have a couple of good cases 
as illustrations, we could illustrate a number of points in this way. 

Are there certain examples of outstanding cases that you or Pete 
or any of the other law3*ers would have in mind at this point? 



236 



Mr. Taylor. I know of a couple of studios in the area of taxation, 
particularly the Crow Reservation and their mineral leasing up th : 
The White Mountain Apache, there was a GAO study of trying to 
develop an economic development format and I am sure that would 
have information that would supply pretty good case studies. 

Mr. Stevens. We have a number of cases documented. One of the 
things we have to do is to blend them into the sections dealing with 
sovereignty, trust, tribal government and so on. But I also feel we 
have to illustrate the possibilities where Indians would control their 
own technical assistance capabilities. I think we have some very good 
case studies where Indians have been successful if they were merely 
given the opportunity to develop some of their own things. 

I think of the Lummi, I think of Quinault, and other operations 
where the tribe fundamentally did the whole program, at le<i>t initiated 
it and pushed it along. We would include those case studies too, to 
show how it can work. 

Mr. Taylor. I think the Quechan, the tomato farms 

Mr. Stevexs. The Quechan, which the Commissioners visited, 
not only has controlled environment, but also demonstrate these 
ability to consolidate lands and bid against non-Indian agricultural 
enterprises. The}' have a farming operation run completely by the 
tribe. 

Mr. Taylor. Another area that might warrant study here, it 
overlaps with jurisdiction, would be Colville in hunting and fishing 
and selling licenses for that purpose, and the revenues that >uch a 
thing generates. 

Ms. Deer. I think it is unfortunate for whatever reason the work 
of the task force has been inadequate. It seems to me this resource 
area represents an opportunity to integrate many other areas, such as 
sovereignty, jurisdiction, trust and so on, so I am looking forward 
to your completed work on this. 

Mr. Whitecrow. There is an nr^a T think we need to look at, and 
Ernie, I would appreciate your covering this area for our next meeting, 
and that is approaching those trust moneys the Bureau presently In.-. 
It is my understanding they presently have $452 million-plus, and 
their trust responsibilities and the banking regulations to date pro- 
hibit centralizing that money, so it could be beneficial for utilization 
within Indian country. 

What good is Wisconsin Indian money doing Wiseonsin Indians 
when it is being applied to the State of Texas? I think there is a real 
possibility of coming up with a recommendation from this Commis- 
sion to the Congress demanding the Federal Deposit Insurance Cor- 
poration maximum limit, insofar as coverage and depositories with 
banking. We may be getting into an area here where the banking 
interests in the nation will be after us. But if we could centralize this 
money, I see a possibility of creating one of the largest banks in the 
Nation. 

Mr. Taylor. We do have some recommendation regarding revision 
of laws dealing with investment and deposit of Indian trust moneys. 
I am sure we could expand on that. I know we did not get to the FDIC 
concept, but I am sure we could come in with recommendations on 
that, 

Mr. Borbridge. As I recall, in the process of the development of 
this report by the task force, a very specific charge given by the 
Commission was that housing should receive a . very definite emphasis. 



237 



If I recall correctly, in its preliminary report to the Commission, the 
task force was specifically directed again, that housing was to have a 
great importance as a part of that report. As I further recall, the 
executive director made this report to the Commission and reported 
on the outcome of the conversations to correct the situation as well. 
As I quickly pursue the report, it appears that housing is largely absent 
from the report. This goes beyond being just an inadequate treatment, 
it falls short of responding at all to the direction of the Commission. 1 
think this is unfortunate. 

There is no question that the entire spectrum of housing concerns 
might be better met and programs better administered. This is a very- 
important element of the report. 

Also, in looking at the treatment given to or not given to the 
whole matter of forestry and timber products development, these 
are important because they go right to the heart of the ability of 
the various tribes to administer on their own behalf and to exercise, 
what I think, is the basic and fundamental proposition of economic 
self-determination. 

I am pleased that the approach you have outlined will be made 
with respect to this area. I consider it extremely important. In the 
end, I think the manner in which the Federal Government relates to 
and recognizes its obligation in this area will have a great deal to do 
with the success of on-going and future tribal enterprises. So I want 
to express my concern as well, that so many of those very basic im- 
portant matters were not given the detailed attention we anticipated 
they would receive. 

I can only conclude the staff that is going to work to fill in these 
gaps are going to have their work cut out for them. It appears to me 
that there is a considerable amount of work to do. In all fairness, do 
you feel you have the resources with which to address yourself to 
what I think is the most fundamentally important aspect of this 
study? 

Mr. Stevens. We have, if we use existing materials. We do not 
have if we try to develop new materials. 

Mr. Dial. So you plan to say on water, I use Veeder as an example, 
use some of his existing materials on water, some of his studies on 
water. It seems to me that is the only way you could complete your 
work. You don't have time to do it now. You don't have time to hire 
someone to go out and do it. 

Mr. Stevens. The only supplementary type of work we will do 
will be an economic analysis. We have retained an economist to look 
at existing economic data. I want to mention, for instance, there is 
an excellent study on income distribution on the Yankton Reserva- 
tion, and I think there are one or two others pending. There is a 
wealth of bibliographic material, many pages on file, and in pretty 
good order. 

Mr. WmTEcrow. I will say one final thing, and then I will relinquish 
the floor. I think Public Law 95-580 really spells out what our re- 
sponsibilities are in trying to come up with a congressional movement 
to make tribes self-sufficient. And, unless we provide resource op- 
portunities, however they may be, whether they be through the World 
Bank or through utilizing our own Indian moneys with protections 
on those moneys, or whether we utilize additional Federal funds and 
make recommendations for additional Federal funds to utilize these, 
I think we are really just spitting into the ocean in this effort, unless 

82-749— 77— vol. 4 16 



238 



we provide those sources and resources that the tribes can develop 
industrial enterprises, business enterprises, et cetera; to create those 
jobs there on those reservations and develop those natural resources 
to the extent necessary for self-sufficiency. 

Mr. Bruce. I know 1 have harped on this every time we have had 
a meeting, and griped, the rest of the Commissioners did not set up a 
task force on housing. I feel very strongly about it. 

I want to ask the question why we did not use the housing report 
that was submitted? 

Mr. Stevens. I don't know. We asked them if they would use it, 
and they said no. I don't know. I asked them and they just did not 
want to use it. 

There was something we were just not privy to. But the housing 
report and the thing on EDA, both their conclusions were not to come 
to recommendations. There was some kind of agreement on the part 
of the consultants and the staff I was not aware of. I just do not 
understand it. 

Mr. Bruce. Are you going to be able to use this report for some- 
thing on housing? 

Mr. Stevens. Yes, sir. 

Mr. Bruce. We had a meeting in the office the other day on 
housing. But I have read that carefully. There are some excellent 
ideas that we ought to be recommending. 

Mr. Borbridge. You feel there is sufficient material you will not 
only be able to deal with regarding the question of clarification of 
ownership rights, planning for and the utilization of the resource 
base, but that such resource base will be considered not only on the 
reservation status, but on ownership patterns which are other than 
reservation? 

Mr. Stevens. Yes, sir. A good part of that is economic analysis in 
projecting income. Many times the consolidation of heirships and the 
acquiring of lands within the exterior boundaries are looked upon as 
trust matters or one thing and another. It is an economic potential. 
I think people have to spell out the benefits of the acquisition of land, 
and I think that can be done with projections of figures. Also, I believe 
one of the things the Dawes Act fails to take into account is the 
financial loss suffered by Indians. We always look at how it broke 
down the reservations and its effect on the tribes. But we never 
specifically lay out what the financial harm was. 

Mr. Meeds. Are there further questions or comments on chapter 
8? If not, I think you have made a very wise decision to further study 
this matter and come forward with recomendations later; with in- 
dependent analysis of information already collected and/or further 
information and~ analysis which may be done. 

Is there further business to come before the Commission? If not, 
the Chair would like to mention you should take your materials with 
you tonight ; we will be over in room 1114 in the Dirksen Building 
at 10 o'clock tomorrow morning. 

If there is no further business, the Commission is adjourned until 
10 o'clock tomorrow morning in the Dirksen Building. 

[Whereupon, at 4:17 p.m., the Commission was adjourned, to 
reconvene the following day, Tuesday, November 23, 1976, at 10 a.m.] 



MEETINGS OF THE 
AMERICAN INDIAN POLICY REVIEW COMMISSION 



NOVEMBER 23, 1976 

Washington, D.C. 

Present: Senator James Abourezk, chairman, Congressman Lloyd 
Meeds, vice chairman, Senator Lee Metcalf, Senator Mark Hatfield, 
Congressman Steiger, Congressman Sidney Yates, Commissioner 
John Borbridge, Commissioner Louis R. Bruce, Commissioner Jake 
Whitecrow, Commissioner Ada Deer, Commissioner Adolph Dial. 

Staff: Ernie Stevens, staff director, Ms. Ernie Ducheneaux, admin- 
istrative assistant, Paul Alexander, Peter Taylor, Ray Goetting, 
Donald Wharton, Charles Wilkinson, Patricia Zell. 

Mr. Meeds [presiding]. The American Indian Policy Review 
Commission will be in session for the further consideration of the re- 
ports of the staff in regard to the task force reports. The agenda for 
today is chapter 10, "Off-Reservation Indians;" chapter 14, "Special 
Problems, Oklahoma;" and chapter 15, "General." 

We will now proceed with chapter 10. Paul, would you give us a 
general overview of the task force reports covered by chapter 10 
and the basic recommendations which are made by the staff. 

Mr. Alexander. Chapter 10, which is termed "Off-Reservation 
Indians," essentially comes from Task Force 8 which is urban and 
rural nonreservation Indians. The task force report is essentially a 
problem identification report. The task force did its work, as I under- 
stand it, through a series of field hearings and questionnaires to urban 
Indian groups. In terms of the recommendations that the task force 
made, the staff at this time is not willing to recommend that their 
specific recommendations be adopted. There is significant controversy 
amongst some of the urban groups concerning some of the recom- 
mended mechanisms for delivery of services in certain areas. The 
staff would like more time to work out the general details. 

The general thrust of the chapter is that there are substantial 
needs in distinct social service areas to nonreservation Indians. One 
of the lacks in the report, in my view, is that the report does not get 
sufficiently to the notion of — it does not trace and specifically identify 
what the problem areas are: In general, the types of povert} r funds 
that run through State and private organizations, including those 
going through urban areas, in terms of what the economics are there. 

The report makes some general recommendations for $90 million 
in budget, $50 million to IHS and $40 million in general. We cannot 
determine from the report what those numbers are based on, what 
the setoff would be by taking existing funds from the various pro- 
grams and putting them into that. 

Some of the issues that have to be worked out involve the mecha- 
nisms for the deliveries. What is the role of the urban Indian center 



(239) 



240 



and what is the role of the individual tribes in relation to the urban 
Indian center? Should some programs pass through the tribes? 
Should others go directly to the urban Indian centers? Should the 
urban Indian centers control certain funding or should they have 
substantial input to the decisionmaking within the county or the 
State systems where the programs are currently being run? 

There is not a consensus in Indian country that we have been able 
to identify on each of these issues, so our recommendation to you is 
to acknowledge that there is a substantial needs problem among 
urban and rural Indians, and to go back to the drawing boards and 
try to work out several delivery system mechanics for your considera- 
tion in January. I would mention a number of urban Indian groups 
have contacted us in the last several weeks asking for input into the 
task force report in terms of alternative recommendations. 

We said we would be perfectly willing to talk to them. A caveat 
with that is, we do understand that task force did, by questionnaire 
and invitation, solicit the input of many urban Indian centers and 
Indian groups generally. They got mixed results in terms of 
responsiveness. 

Mr. Bruce. I want to ask some questions about the fact that they 
did send out questionnaires to all of the centers, urban centers, which 
would be 78 or 79 and also as many individual urban Indians as 
possible. Isn't it true we got very, ver}^ little response? 

Mr. Alexander. I am going to answer in two parts. As I under- 
stand it, the response was minimal. The other thing which has permeated 
our discussion is that much of the input of Indian country in this 
task force area — and other task force areas — has been on problem 
identification. Then the task forces went from problem identification 
to potential remedies. It was very infrequent that remedies themselves 
were the subject of Indian input with the exception of Public Law 
280 and some other specifics; but generally speaking, input was in 
problem identification and not necessarily in remedies. 

People told us things like — we have a problem and you have to 
understand the problem and the permutations of that problem. There 
has not alwa}'s been a great deal of thinking about what is the best 
remedy for all situations. 

Many of the kinds of remedies are very specific to the problem that 
exists. In Minneapolis, with a particular program, for example, what 
the application of that program is in a Chicago setting or a setting in 
Oakland, Calif., or Los Angeles, may vary. It is a substantial problem 
for us to define the kind of mechanics that are necessary to reach all 
of those different situations. 

But you are absolutely right. The response was minimal. 

Mr. Bruce. I want to also say I attended most of the urban hearings 
and so I am in a position, to the extent I attended those hearings, of 
knowing that no one was kept awa}\ In one instance I remember we 
ran until 10 o'clock at night on the hearings so the people who came 
a distance could testify at those hearings. 

I have had the pleasure of attending eight key centers across the 
country on my own, and spent a couple of days including last week 
up in Boston. I have a different feeling whether they were typical of 
all of the other centers. I am not sure. But I did find there was a lack 
of clear understanding of what their responsibilities are and where 
they fit into the communities. 



241 



I would point out maybe, Wichita Center, winch is very closely tied 
into the city operations to the extent where they do fund that center — 
and I think it is $2 million a year — that comes out of the budget of 
the city, that they do secure money, as well as help, from city em- 
ployees. 

There is a very close tie between what they are doing there and the 
activities in the city. I happened to be present when they had an art 
showing and opening and so forth and to see the tremendous crowd 
that came out that night and since then for a new center funded by 
the city. The city officials were very proud to say to me this is our 
center, and we are proud. It is our Indian center. It is that kind of 
thing. Plus, setting up committees and that sort of thing. 

But I think we need to postpone any action on this. There are some 
recommendations, like whether funds should be channeled through 
the centers for the services rendered to urban Indians. That is not 
clear. There are some that feel that way. Also, the recommendation 
that there be an Assistant Commissioner in the Bureau to be respon- 
sible for the funding of these centers. 

Let me say this, too. There are some centers that work very closely 
with the community*, the help, and where the services are available 
to the Indians, and I am not saying this in all cases, they reach in to 
fund those services to urban Indians. So I got a vast variety of re- 
action from visiting these centers. I want to go into that a little bit 
more. 

The question I want to ask is : How do you come to $40 million for 
general services? It spells out health, employment, housing, and so 
forth. That is not broken down anywhere in the report. 

Mr. Alexander. In my view, the task force report does not sub- 
stantiate its economic recommendations. It does not analyze existing 
funding and it does not define what that $40 million would be spent 
for. As far as I am concerned, that is a figure pulled out of the air. 

If the proper analysis was done perhaps that would be the figure. 
But there is absolutely no way of knowing. 

Mr. Yates. Is that an annual figure? 

Mr. Alexander. Annual; yes. It seems to be a ball park figure. 
They do not seem to substantiate it. 

Mr. Bruce. It is true within the last week or so I have had a lot of 
response from urban people including the centers. The eight centers I 
visited. We have suggested the}* fill out their reports and do it; a little 
late, but if they wake up before and respond to our questionnaire, now 
that the}* want to blow things up, but go ahead. Open up and send 
their reports in so we can review them. I don't think we have enough 
background now except in the report itself to make recommendations 
specifically. 

Mr. Whitecrow. One thing I want to make very clear, and that is 
the fact that I am not antiurban metropolitan Indian. I come from a 
nonreservation State at the present time and we do have a tremendous 
number of urban and metropolitan Indians in the State of Oklahoma; 
we even have skyscrapers in the State of Oklahoma. 

So we are almost up to date. I think from the standpoint of Indians 
in metropolitan and urban atmospheres, whereby we have real fine 
Indian facilities, Indian centers, that have been developed as a result 
of Indian interests with the assistance of local governments and State 
governments, and in many cases, the Federal Government, providing 
funds to operate these facilities. I am not antiestablishment at all. 



242 



But I feel the moneys are being provided and it has been pretty 
well determined from our previous discussions here that the money 
provided is being provided as a result of the special relationship the 
Federal Government has with tribes. It is my understanding the 
Federal Government does not have that special relationship with the 
individual Indian other than that individual Indian holding full 
citizenship rights as a citizen of the United States. 

Now, we talked at some length yesterday about how we were 
bringing education to Indians, and our education task force recom- 
mended the Indians control those schools in reservation areas. I at 
some length commented we needed to provide the moneys through 
the tribes for all of the supplementary- type educational programs. 
Johnson-O'Malley funds are those special types of funds funneled 
through the tribes. Wherever an Indian goes, he is an Indian, and f 
certainly realize people back in some reservation areas, when one of 
their citizens leaves and goes to the metropolitan area, that the}' 
claim they are no longer Indian. An individual does not lose his 
Indian identity when he leaves home. He still retains that identity. 
He still has a special relationship with the Federal Government but 
it is through his tribe. 

This is, as I understand this whole concept, and therefore, those 
Federal funds that come down to any kind of an operation to benefit 
Indians, should be funneled through the tribe putting that responsi- 
bility upon the tribe, thereb}' making tribal government responsive 
to its members. 

Then, when we have Indian centers developing around the area, 
they would negotiate with the tribe to determine the amount of 
money that particular tribe could fund through it to the Federal 
Government. True, this creates an administrative workload. It would 
allow the Federal Government to determine how man}^ dollars it 
must provide to meet the responsibilities it has to that special 
relationship. 

Currently, we have got so many different people advocating for so 
man}^ different kinds of mone}^s, I am sure Mr. Yates' committee 
has a terrible time as to determining whether or not they have 
duplicated funding. So from the standpoint of what I am getting at 
here, I am in concurrence; I don't think we are in a position to make 
a decision on this. But I would like to ask the staff to make a study 
of it and determine some means of alternate funding through the 
tribes. 

Mr. Yates. I want to comment on what Jake said. Mr. Chairman. 
Commissioner Whitecrow said it would provide difficulties if the 
funds were channeled through the tribes in part for Indians who 
live in urban communities. In my District in uhicago, for example, 
we have representatives, I am told, of as many as 200 tribes. Of 
course, they are scattered throughout the country. The tribes them- 
selves come from all parts of the country. 

If your concept is correct and the funding for the health of the 
Indians who live in my district must come through 200 tribes in 
different parts of the country, it seems to me it would be almost 
impossible for the Indians to receive their health care. I don't know 
whether this is an unusual circumstance, whether my district in 
Chicago is unique in having representatives of so many tribes, but I 



243 



suspect this would be true in every metropolitan community in the 
country. 

If this be true, if ever}^ metropolitan community in the country is 
made up of as many kinds of Indians as mine is, it seems to me yoj] 
may be undertaking an almost impossible task in providing care for 
the Indians who live in those communities if you require the Federal 
Government give the money in the first instance to the tribes and 
then let the health care of the Indians who live in the metropolitan 
areas or communities depend upon the money from the tribes. 

Let me ask a question. What happens if the Federal Government 
does not provide enough money for both the tribes and the Indians of 
those tribes who live in metropolitan communities? Under your con- 
cept isn't it a problem that the Indians on the reservation would 
receive first those funds and the remainder of the funds will go to 
those who go in the cities? 

Mr. Whitecrow. I think that is probably true. In the field of health, 
in contract health care alone, many of the urban clinics that have been 
established have to have some form of third-party reimbursement. 
They have to have some form of funding. In some instances the ad- 
ministration of the clinic is funded by the Indian Health Service. 

If we are looking at creating a separate agency for Indians, then 
all of these various moneys that are provided be funneled down through 
this same agency, then in the budget process, at tribal level, they take 
into account all of these many needs, the total dollar needs, to fulfill 
those responsibilities of social services, responsibilities of transporta- 
tion, the responsibilities of highway development, et cetera. 

They develop this total need. Let's take as our example funds for 
health care, a line item in the Indian Health Service budget. We are 
constantly running out of contract care money in the Indian Health 
Service. 

I think it would be impossible, it would be a terrible uphill fight 
I am sure, to get the particular line item budget funded with an open 
end. But contract health care money as an individual Indian repre- 
sentative of a tribe or a member of a tribe wherever he may go could, 
with the delivery of health care, receive an identification card as a 
private member, as a tribal member, and this tribal member would be 
informed of what his benefits are. He could take this card like Senator 
Bellmon was talking about, it would be of a relationship the tribe could 
develop through its own insurance program or some existing insurance 
program, and pay that care through the tribe for its tribal member. 

This individual then would go to the Indian urban health clinic and 
receive health care and the clinic itself would receive reimbursement 
for those services and allow that clinic then to maintain its operations. 

Mr. Yates. If you will yield further on this, it is not only a question 
of health care. I think also there are two schools in my district; for 
example, I have a high school and a grammar school, where the 
population is almost exclusively Indian. I assume your concept would 
require the funds for their education would go to the tribe and then 
go back to the board of education in the city of Chicago to educate 
those Indian children. What to do, too, about the section of the 
Department of Labor which has a special group in my area to provide 
equal employment opportunities for Indian people? Would you have 
the funds go back to the tribe again and then have it channeled to the 



244 



Department of Labor in order to take care of the unemployment needs 
of the Indian people? 

You have a series of needs which include not only health, and educa- 
tion and labor, but I am sure as this concept is developed you arc going 
to find they require other needs as they go along. I just wonder whether 
you are not putting yourself into a labyrinth. I think as you have 
explained it, it is a very simple and logical concept. I wonder whether 
or not it is capable of execution under the circumstances in which we 
find ourselves toda} r of Indians who live in the metropolitan com- 
munities and who are in need almost immediately of their particular 
needs ; to require them to receive their funding from the tribes I think 
will really deprive them of their opportunity — I don't know what the 
answer is. I know today we have great difficulties in providing funds 
for health services in the Indian communities. There are certain of 
my colleagues who say why should Indian people in the cities receive 
any better care than any other Americans? Why shouldn't the Indian 
people go to the clinics where other Americans go? Why should Indians 
have preferred treatment? 

I have argued so far that the Indian people are a special group 
under their relationship with the Government of the United States 
and they are entitled to a kind of special care. 

But I think to set up your kind of special establishment, you are 
going to deprive them of the funding they are going to receive. It is 
a very complex subject. I don't envy our staff here trying to get it 
worked out within the next couple of weeks. 

Commissioner Whitecrow. Certainly, I realize it is a very complex 
area to work out. There are still a lot of details that need to be worked 
out. But if we are really in effect looking at self-sufficiency of the 
tribe — that is the question — and Public Law 93-580, if the Govern- 
ment is looking at self-sufficiency of the individual Indian or are they 
looking at self-sufficiency of the tribe? We must take a look at this 
side to make that tribe self-sufficient — individuals, I don't think we 
will ever make every individual Indian totally self-sufficient. 

This is pretty well established by the atmosphere of the United 
States today in total. But I think it is a realistic picture to make a 
tribe self-sufficient. 

I am not advocating an overnight turnover insofar as this is con- 
cerned. I think it should be the attitude of Indians and their relation- 
ship to tribes has not developed overnight, tribal government has 
been relegated to a point of insignificance for a hundred years now, 
and it has taken a hundred years for people to realize they did not have 
a tribal government or if they did, the}^ had nothing more than a civic 
organization. 

If we are looking at a sovereign issue and if we are looking at the 
court of jurisdiction, we should also be looking at the funneling of 
these funds and the relationship of the Cougress back to those 
tribes rather than to the individual Indians. 

I would like you to give that some thought, if you will, as to how 
it could be done without depriving services and perhaps piecemeal 
this in over a period of years. 

Mr. Alexander. We have been giving it a lot of thought. One of 
the ideas we have been kicking around is to look at specific services. 
One of the notions that was suggested was for scholarships, particularly 



245 



in those type of programs, that they at least run initially through the 
tribe. I think we would kind of break it down service-by-service 
conceptually first, and see what the various administrative procedures 
would be. 

Your views are well known to the staff* and the views that you 
represent have been expressed to us many times. It is not an easy 
question. That is all I can say right now. 

Mr. Meeds. I would like to go to a kind of threshold question, 
if I may, and that is, what is the legal basis for responsibility to urban 
Indians who are not members of a tribe to which some special treaty 
responsibility runs? 

Mr. Alexander. I take it beyond special treaty responsibility. 
To start off with, it conceptually gets us back to our conversation of 
yesterday involving the course of dealings. The fact of existence of 
many urban Indians comes from BIA relocation programs, the failure 
of the Federal Government to enhance and maintain the economies 
of reservations, and the movement of Indians from tribal areas. It 
comes from a course of dealings. A course of dealings creates a certain 
level of dependency. 

Mr. Meeds. The policy of assimilation? 

Mr. Alexander. The policy of assimilation is one component. 
The other component that I think has to be addressed comes from 
the failure of the Federal Government in the primary trust responsi- 
bility which has to do with the resources and the economic develop- 
ment of the tribe. The fact that tribal economies are and have been 
for so long essentially dormant, forces people to seek employment 
opportunities in other areas; the assimilation policies which we are 
most familiar with in the 1950's moved many people to Chicago which 
was one of the relocation centers. 

Your statement, Congressman Yates, about the diversity of Indian 
population in Chicago is true for the Los Angeles area, is true for 
Oakland, it is true for many parts of the country; other urban areas 
closer to reservation areas like the Great Lakes regions seem to have a 
more consistent population. But there is great diversity. Two hundred 
tribes 

Mr. Meeds. Perhaps we should provide for a system of identifica- 
tion and qualification of tribes, groups or bands which have a special 
treaty relationship with the United States, and provide for a system 
under which those tribes, groups or bands could identify their own 
members. All Indians who would not fall within this category would 
be treated as a special social problem resulting from mistakes in 
governmental policy in much as we do the problems of poverty. Isn't 
that a better legal foundation than establishing a basis for special 
treatment of a broad array of Americans who through some govern- 
mental policy — a governmental policy which we perceived later to be 
incorrect — have been displaced, caused to change their course of 
action and a number of other things. 

I think it is a rather dangerous precedent to say that because of 
governmental action which is later perceived to be incorrect, there may 
be some special responsibility on society to single these people out. 

I think it would be better to say this is a social problem. In that way 
we could work through urban centers and not have to go back to tribal 
distribution which I agree with Mr. Yates simply won't work in 

82-749— 77— vol. 4 17 



246 



urban areas where 10, 20, or 30 tribes might have some areas of 
responsibility. 

Mr. Alexander. In a sense what you have described is the current 
system. The programs that in fact go into the urban areas —most of 
the programs, I will qualify that — are basically poverty program- run 
by CETA (Comprehensive Employment and Training Act) moneys, 
we are talking mostly about HEW programs, we are talking about 
food stamps, a wide range of programs that this country has made 
available to people at poverty levels as opposed to, with some excep- 
tions, special programs flowing out of the trust obligation. 

I would still maintain however, that the trust obligation that the 
United States has, vis-a-vis the political entities of the tribes, in a 
course of dealings which defines and changes in a sense the secondary 
components of that trust obligation which are the social service com- 
ponents should flow especially to those Chicago members residing 
there because of governmental action or inaction ofT reservation. 

Mr. Meeds. I hope we are not discussing a distinction without 
difference here, but it seems to me there is no legal basis for special 
treatment of urban Indians who are not members of tribes which 
have a special relationship with the United States because of treaties. 

It may be the result of the course of dealings with the Government, 
that you can say the same thing about blacks in housing, then you 
can say the same thing about other members of our society because of 
special courses of dealings and special governmental policies which 
set them apart as social problems. 

But I find it difficult to substantiate this relationship on a legal 
basis. 

Mr. Wharton. I think in responding briefly to that, that there is 
a specific difference between the kinds of problems you identify with 
non-Indian special interest groups and the Indian people we are 
talking about in this context. Unlike the other groups you identify, 
they have not had the resources available to them in terms of their 
governments, and their lands, and their other >y>tems of resources 
appropriated away from them and put into a position where they can 
no longer provide those things for themselves. 

Mr. Meeds. As individuals we may speak in terms of tribes having 
had lands taken away from them, but I don't think you can speak of 
an individual who moves to the city voluntarily or as a matter of 
governmental policy as in any different situation than a black who has 
been forced to live in the central city because of housing discrimination 
which prevents him from moving out. They are both in the same sit- 
uation. They are both there because of official governmental action. 

Mr. Wharton. As a practical matter, they both have the same 
problem and they are both in the same position. As a legal proposition, 
that black does not have a separate entitlement. That is, that entitle- 
ment arising out of their aboriginal claim to the use and occupancy of 
the land irrespective of treaty or other agreement specifically between 
them and the U.S. Government. This is the principle probably from 
the ver}^ first, I believe Johnson v. Mcintosh. 

I don't have the date, it is one of the early Supreme Court decisions, 
Johnson v. Mcintosh, which la} T s down the justification used by the 
European nations to take the land and specifically those justifications 
based first of all on discovery which did not give them the land. What 



247 



it gave them was the exclusive right to negotiate for the land vis-a-vis 
other European sovereignties. 

The second justification being they have — God told them to come 
and save the heathens, literally, and the Pope passed that along to 
them so they had that obligation. And in view of that obligation bnefy 
could do virtually anything that was necessary and they usually did. 

Given those dual justifications, they came and reorganized govern- 
ments, appropriated land, for whatever view you may take of that, 
and then when they did that as they moved across the country, it 
doesn't serve any purpose to retell all of the horror stories, but the 
point is they destroyed the governments and systems available to 
those people to survive in this country and that is not the same situa- 
tion that any other identifiable group faces within the boundaries of 
this country. That is a separate, distinct, legal entitlement. That 
is what the whole course of dealings is about. 

They have created a dependency for people in their own land. 

Mr. Meeds. Is this in fact the principle of Johnson v. Jilclntosh't 

Mr. Wharton. No. Johnson v. Mcintosh is the land. The depend- 
ency principle comes out of Kagama. Kagama is a treaty case dealing 
specifically with treaty, but the principle of dependency is enunciated 
in that case. 

Mr. Borbridge. If I may rephrase some of this, what you seem to 
be saying at this point is that in looking at the entire spectrum, if you 
will, of the various tribes, some are denominated federally recognize d 
tribes and others are not so denominated, while others fall in betwec n. 
We are not sure in which category the tribes may fall. Let's look first 
at those tribes that are recognized by the Federal Go verm turn t 
through treaties or other specific instruments and let's take a look at 
the specific tribal members who, for various reasons, have migrated 
into the cities. 

We have just been examining the administrative difficulties involved 
in having the tribe administer the program and having the funds flow 
through the tribal government which could conceivably be far removed 
from various members of its tribes who might be located in various 
cities. 

It seems to me this becomes something of a mechanical point. We 
must clearly establish that the sovereignty of that tribe is important 
and a recognition by the Federal Government in the delivery of the 
services to its members wherever located must also take into recog- 
nition that sovereignty and its importance. It may well be that the 
mechanics for various reasons may not necessarily result in the 
specific delivery of those services, say, in a specific city. But there may 
still be a recognition of that tribal membership in such a way that 
even where the tribe itself does not specificalty deliver the services, a 
recognition by the Federal Government of that tribal member or 
members, and their relationship to the tribe, would be a part of that 
delivery system. 

Isn't this part of what we are saying at this point? In other words, 
I don't want this proposition to flounder solely on the basis of mechan- 
ical difficulty. I think if we establish that the principle is important, 
for example, ten tribal members in city A are recognized as members 
of that tribe, the delivery of services will be related to that tribe in 
some fashion. Is this a distinct possibility? Another important propo- 



24S 



sition is to take a look at the entire spectrum of the circumstances of 
our people. Let's remove the question from the setting in which it is 
now placed in an urban setting. We tend to become somewhat too 
involved in the mechanics, and I subscribe to the notion the principles 
are more important than the mechanics at this point. 

I think that what we are talking about now is not just Indians in 
an urban setting; we are talking about Indians in the United States. 
It seems to me the question that is involved here is simple even if 
the response we make to it is not so simple, and that is taking the 
entire spectrum of the Indian nation; what is the specific relationship 
of the government to the entire Indian nation? 

Thus we can start with the tribes which are more identifiable and 
with whom there is a treaty or other very specifically identifiable 
relationship, at least one that the Federal Government has gone on 
record as recognizing. 

Over the entire spectrum, I am not sure what to do except to say 
perhaps that they are tribes that are not recognized or tribes not 
subject to specific treaties or perhaps tribes subject to ambiguity 
caused by the Federal Government itself — maybe that is a better 
encompassing term. You have just stated a proposition that you 
feel pretty well encompasses this entire spectrum. I guess this is the 
key question I am looking for here. How do you perceive this rela- 
tionship? Does it extend to the entire spectrum of native Americans 
in the United States? 

You partially addressed yourself to it. Remove it from an urban 
setting. I think urban delivery of services is a matter of mechanics. 
How self-encompassing can our approach be? 

Mr. Alexander. There is in fact I think one group that is left 
out of the two things you say, or some individuals, not necessarily a 
group. There are people who because of intermarriage patterns between 
tribes may have the blood of three, four, or five tribes, and not have 
sufficient identification with any tribe to be a member, although they 
may be 90 percent Indian blood. That is an additional wrench in the 
machinery we are talking about. 

Mr. Wharton. I think there is another thing that needs to be 
recognized. Particularly with respect to individual Indians in urban 
settings, that the reason they are in the urban settings as we have 
pointed out is because the}' have not been able to support themselves 
in tribal settings. 

One of the other things that needs to be noticed is a significant 
number of people in urban settings, return to their tribal and reser- 
vation bases when they can. They are not oftentimes in those urban 
settings from now on. It is a quite transient-type population that 
moves back to the tribal setting when the opportunity is available 
to them. 

I think what you are pointing out is very important. You have to 
recognize as a primarv principle sovereignty and the base of the 
government, the ability of that government to deliver those services 
to those people. 

Obviously, there is administrative difficulty about delivering serv- 
ices in urban settings and the mechanics of that need to be worked 
out in reasonable fashion. I agree with you that would not be incon- 
sistent with the sovereignty'. 



249 



Mr. Borhridge. We recognize then at this point we feel it is 
recommended the mechanics of delivery take into account the sov- 
ereignty of the tribe, recognizing the tribal individual wherever 
that individual may be. We Further recognize that with the diversity 
of tribal membership and the small numbers that may be located 
in various areas, it may not be possible for that tribe to directly 
administer those services, but it is certainly possible for the Federal 
Government to recognize the membership of those tribal members 
in the tribe. It is important to recognize that even if the participation 
of the tribe may not be necessarily through a direct contract to the 
5 or 10 members located there. That is a matter of mechanics. 

I am not asking for the impossible with fragmented contracts to 
5 tribal members or 10 members. This is not the basic proposition. 
The proposition I am recognizing is that the service must be quality 
and the sovereignty of the tribe which are both important to this 
issue. 

Mr. Meeds. Are there further comments on this chapter 10? If 
not, thank 3^011 very much, gentlemen. We will now proceed to the 
considerations of chapter 13, Problem Areas, Alaska. 

Tell us what task force reports the information contained here is 
taken from and give us your general recommendations. 

Mr. Alexander. This is a special report. This chapter is based on 
a special report undertaken by three task forces: Task force 4, juris- 
diction; task force 7, resource development; task force 2, tribal 
government. It is limited in scope, this chapter. It in no way seeks 
to lay out all of the issues and concerns that relate to Alaska. 

Most of the chapter focuses on the Alaska Native Claims Settle- 
ment Act, and some of the problems, short term/potentially long 
term, that are perceived under the Claims Act. In addition, the 
chapter addresses some of the mechanics of existing programs, par- 
ticularly 638 and who is the appropriate tribal entity to administer 
638 programs. 

It is my understanding the AFX is submitting a report to the 
Commission that will encompass some additional areas of concern 
about Alaska. We have not yet received that. In addition, some of 
the specific problems are not included such as health care, how 
educational services operate in Alaska. After the health task force 
report was received in toto the Alaskan member of that task force 
submitted an additional chapter on Alaska which we have not had 
time to integrate on health problems in Alaska. The text of the task 
force report itself had a small chapter on Alaska which was totally 
insufficient. So we did not draw any recommendations from it. 

Basically our conception is Alaska must be treated separately 
because of its unique history in terms of the United States and the 
fact of the Alaska Native Claims Settlement Act. 

What we have defined is short- and long-term problem areas and 
some solutions for them. The short-term issues center around Alaska 
Native claims for 40 million acres and a cash settlement of approxi- 
mately $1 billion. The mechanics of the settlement include a system 
of regional corporations and village corporations. 

Congress in the Alaska Claims Act, as you are well aware, under- 
took an experiment. Something it had not done before. 



250 



It has tried a totally new approach. There are time constraints in 
the act about the taxation of land, the alienation of stock certificates; 
the period of generally 20 years. 

What we are faced with today in Alaska as we understand it from 
the Native Corporations, the Alaska Native Foundation, and the 
AFN, is the significant problem in the operations of the Department 
of the Interior in making land transfers. 

At the time of the report, which was in July, only 500,000 acres of 
land had been transferred out of the 40 million acres in interim 
conveyance form to corporations. As I understand it, since that time 
several million additional acres have been transferred. 

We are in a situation where because of the easement negotiations, 
because of the enormous process undertaken by the Native Cor- 
porations for selection, the economic potential of the act is being 
undercut. The corporations spend substantia] resources in fighting 
the Department of the Interior. The SI billion that was set out, some 
of which flows to the corporations, and some of which go through 
the corporations to individual native stockholders, is undercut by the 
inability to develop resources because of the hiatus in the transfer of 
land. 

It is undercut by the cost of opposing the Department of the 
Interior. It is undercut by inflation, if nothing else. 

What we have suggested, one, is that the Department of the 
Interior allocate sufficient resources — this is on page 2 — to its Bureau 
of Land Management, so it can get the land conveyance process 
underway. If the Department does not have the existing resources 
that it should make a request to Congress. It is our view that an 
executive department cannot hide behind the notion that it is over- 
worked or overtaxed unless it comes to Congress and presents Con- 
gress with that problem saying it is overworked; in this Native 
Claims Settle Act it needs resources to be able to make conveyances. 
$ The suggestion that the easement provision be repealed comes from 
the joint federal/State commission that was established under the 
act and it is the recommendation of the State director that has been 
echoed by many of the corporations; an alternative proposal is for 
the Department of the Interior grant interim conveyance. For those 
of you who don't know about interim conveyances, because most of 
the lands in Alaska have not been surveyed, it is impossible until 
this survey occurs to issue fee patent titles. So there is an interim 
form of title or interim conveyance which with the addition of an 
exact survey to establish the metes and bounds of the specific parcels 
of land then become the fee title. 

The additional suggestions which have been made to Interior by 
a number of Native corporations in interim conveyance be issued to 
the corporations and the easement provisions be fought out later, 
even in the courts where they seem to be heading. If they end up in 
court, what you are going to do is eat up millions of dollars in at- 
torney's fees, aside from all of the expert testimony that is necessary. 

I might point out on easements, and this again is the position taken 
by the State director, that there are existing legal processes for de- 
termining easements that are normally used on all lands, court 
procedures, reimbursement procedures. 



251 



The easement provision of the Settlement Act is very different 
than what would happen if a power company wanted a power utility 
line across a reservation in the lower 48. These are economic weapons 
the tribes in the lower 48 use to get reduced electrical rates or get 
contributions to education, colleges, or what-have-you. Considering 
the significant amount of work that has gone into the Native land 
conveyance, we also recommend the economics of the act be supple- 
mented by provision of attorney's fees for the developing litigation 
and hearings. 

We also recommended, and I understand there was an oversight 
hearing by Senate Interior, oversight of the Department of Interior, 
to the Congress because of the 20-year exemption from taxation — 
what we are talking about is taxation on lands not generating income. 
Once a resource of a corporation, be it investment into a business or 
the utilization of the resources, be they timber, be they minerals, or 
what-have-you, produces a profit, they are taxable under the act. 

Mr. Meeds. What you are talking about is subsistence lands. 

Mr. Alexander. I am talking about subsistence lands. I will use 
for an example, the Arctic Village Corp. Arctic Village selected its lands 
specifically not to develop but to try to retain the culture they have 
had for thousands of years. There is currently no land tax in Alaska. 
That situation may not remain that way forever. 

If Village corporations and regional corporations hold lands and 
wish not to develop because of subsistence of lands and those lands 
are taxed, there are no economic resources to pay those taxes. The 
corporations such as Arctic Village would be forced into a situation 
where they would either have to sell off land or develop that land. 

So what we are recommending at a minimum is that the 20-year 
exemption from taxation run from the time that fee title is trans- 
ferred; optimally it should run indefinitely. There is an additional 
problem and we have not gotten into it in terms of the recommenda- 
tion because there is not a consensus among the corporations in the 
Native villages. That is the question of stock certificates. 

Each Native eligible owns 100 shares of stock in the regional 
corporation and in his or her village corporation. Those stock certifi- 
cates are inalienable for 20 years, that is, they cannot be lost, they 
cannot be sold, with certain exceptions such as divorce proceedings. 
Once that 20-year exemption runs out, those certificates can be lost 
for a variety of means. Even though they might not produce signifi- 
cant income from the corporations, they become the major financial 
asset held by many Natives. They could be lost in debt proceedings, 
they could be lost in inheritance taxes. One of the potential horror 
stories laid out to us by Emil Notti of the Alaska Native Foundation 
in the Artie Village situation again, theoretically the corporation 
decides not to develop a particular parcel of iron ore or oil on the basis 
such type of development would destroy the ecology and the subsis- 
tence economy and the lifestyle of the area. 

Any outside corporation that wished to develop that parcel given 
general corporarion patterns, would need only to buy up maybe 30 
percent of the stock, 40 percent of the stock, for a one-time cash 
outlay and control that Native corporation. 

What we are talking about is will Native people be able to control 
the corporations, which were set up to hold their assets, their heritage, 



252 



under existing and potential economic situations and education situa- 
tions. 

One of the things that was really mind opening, mind expanding, 
was the incredible effort made at the village level to try to operate 
under the act. We were in the village of Unalakleet where under the 
Claims Settlement Act there is an IRA governmental council, there is 
a municipal corporation, there is a village profltmaking corporation. 

They have a nonprofit program operation corporation. They have a 
nonprofit fishing co-op. There are about 150 people and they have 6 
entities which they have to run. Not only do they not know the 
language of corporations, not only do the}' not know — they have tried 
extremely hard in extremely good faith to learn and operate within a 
system. It is an overwhelming and incredible job, to acquire in 5 
years the total corporate vocabulary, the legal concepts to select your 
land. It is being done, but it is being done with great difficulty at the 
villege level. 

Mr. Meeds. Maybe we ought to remove the residents of Unalakleet 
and bring them down to run the Federal Government. 

Mr. Alexander. What they have done is really incredible. They 
have revenue-sharing funds through the municipal corporation and 
they use them to coordinate. But the problems are significant. For 
example, understanding of what a stock certificate means; although 
there is major educational effort going on. There is still very much 
awareness in Alaska of losing control or danger of losing corporations 
down the road. 

What we have recommended on the long term issues — this is an 
experiment people are trying and people are tr}ung sincerely in Alaska 
on the village level and the corporate level to work under the system 
that was set out — is that another look at the act be taken in about 
1980 and issues, hard issues, be examined to see how the experiment is 
going, to see whether some of the concepts that were felt to be ap- 
propriate in the late sixties may in fact work against some of the 
long-term Native interests. Focus on such issues as trust status 
land, alienation of stock certificates — John Borbridge has spoken to 
this and he has spoken several times about it, and other Native 
leaders in Alaska have spoken about it — the first 5 years under the 
Settlement Act have taken 200 percent of everybody's time to deal 
with the mechanics of land transfer. 

It is just recently people are focusing on issues surrounding stock 
certificates, alienation of such certificates, how these corporations 
can interact — some of them are redundant now — how social services 
are performed in Alaska and so on. 

What we are recommending is a hard look-see at basic issues on 
a long-term basis. 

Mr. Meeds. Could I ask a threshold question again with regards 
to this matter. What is the legal basis for a special relationship 
between Alaska Natives and the U.S. Government? 

Mr. Alexander. Our answer is about to become redundant. 
There is in the course of dealings with people who had aboriginal 
rights to all of Alaska, as political and cultural entities, a respon- 
sibility under the trust obligation, the trust relationship of the United 
States, to the Native peoples of Alaska. 

We could go back through Kagama and the discussion we had 
yesterday. Essentially, it is the same. 



253 



Mr. Meeds. Is there not a provision in the Alaska Native Claims 
Settlement Aet which in effect says that this act shall not abrogate 
nor detract from the special relationship that exists? I have some 
recollection of that. 

Mr. Alexander. There is specific language which says the trust 
obligation essentially continues. That is an issue that we have in fact 
not gotten into and which is really a serious issue. The Alaska Native 
Claims Settlement Act, which in fact terminates hunting and fishing 
rights, and which creates certain land bases, certain corporatious 
and is a very complex piece of legislation. One fact is the trust 
obligation and how is that defined. 

This chapter does not get into that at all. 

Mr. Borbridge. I would like to comment on that, Mr. Chairman, 
if I may. It is a very fundamental issue because the rights, particularly 
to the land, of the Alaska Natives, was in fact preserved historically 
for action by the Congress in a series of acts, all of which were alluded 
to in the hearings attendant to the passage of the Settlement Act 
itself. 

What clearly resulted from this effort was not only the specifics 
applying to rights to the land and the effect of the clarification of 
those aboriginal rights, but other Native rights as well were preserved 
for disposition by future acts of Congress. Largely, then, such rights, 
or perhaps more specifically the special relationship between the 
Alaska Natives and the Federal Government was not clearly defined 
prior to the passage of the Claims Settlement Act of 1971. 

What has been restated in the Claims Settlement Act is that what- 
ever the nature of that special relationship, it has not been eroded or 
adversely impacted by passage of the Settlement Act. This is one of 
the very fundamental claims that Alaska Natives have reiterated in 
this area. 

I think it is one that very largely fails to be brought forward. It 
permeates the entire relationship. But it does not emerge specifically 
because of the lack of a specific action needed to clarify its status. 

We point to this as something that is fundamental. The Alaska 
Natives continue to examine whether the Federal bureaucracy is 
adversely reacting, either through regulation or whatever, in assuming 
the passage of the act has somehow caused the Native to achieve a 
circumstance of affluence. The consequence is that Federal agencies 
think that they need not be as sympathetic to the Alaska Natives. 

I think this sort of subtle erosion is perhaps more difficult to fight 
successfully than that which confronts the basis of the trust relation- 
ship more directly. 

Mr. Alexander. Just to follow up on Commissioner Meed's state- 
ment, the United States obligation to Alaska Natives was recognized 
in Berrigan v. the United States, which was a 1905 Supreme Court 
case, to protect and as an obligation of the course of dealings to pro- 
tect its Indian wards. 

Commissioner Borbridge makes a very pertinent point on the 
impact of the Settlement Claims Act on the ps3~chology of the State 
and private citizens; there is a notion abroad in Alaska that there are 
thousands of newly affluent Natives. There is no evidence to support 
that notion. 

What I was referring to in terms of the trust obligation was beyond 
the social services area. These are issues we would have to address 



254 



and we have not yet addressed. What is the Secretary's obligation to 
protect stock certificates' ownership and property rights of the Alaska 
Native villages? What is the Secretary's obligation to enhance village 
governments? What is the Secretary's obligation to protect corpora- 
tion rights? 

The trust obligation runs to land, among other things. But it clearly 
runs to land. What is the Secretary's obligation? Again we get to the 
classic conflict-of-interest situation. The Secretary of the Interior and 
his agents are on the other side of the bargaining table. They are the 
people who define what the easement standards are. They are the 
people who are not acting efficiently and effectively in the land 
transfer. 

Yet on the one hand they have a trust obligation. On the other 
hand they are the managers of the land that is being turned over. 
And, throughout the BLM there permeates an atmosphere of land 
management, not land transfer. 

Mr. Meeds. I think that the single greatest impediment to the 
transfer of lands to the Native villages and corporations is the ease- 
ment question. The suggestion that transfer take place subject to 
whatever resolution of that problem is made is an excellent suggestion. 

Easements are being used as a club right now to prevent the 
transfer of land. 

Mr. Alexander. One of the things I would like to point out 
generally, which is hard to conceive without a map in front of you or 
being in a fishing village, is if you are talking about stream easements, 
those things make a lot of sense in the lower 48, but when you draw 
a 30-foot easement around the village of Unalakleet there is nothing 
left. That is it. And it is considered in all of the villages, a weapon, a 
club being held over the heads of the village corporations. 

Mr. B orb ridge. Just briefly on that point, Mr. Chairman, I think 
this can be added to innumerable examples we have, wherein the 
Secretary of the Interior in providing a justification for an action 
states that he represents the greater good for the public and that 
this action is necessary. Thus, he holds up his right hand in promising 
to provide justice while with the left hand he manages to try to 
assure the Alaska Natives he has done the best he could for them. I 
think this is all too typical of the t} T pe of circumstance we encounter. 

I must suggest, and the vice chairman has had considerable experi- 
ence in the Alaska Native Claims Settlement Act and was one of the 
chief architects of the act, that it provides such a wonderful oppor- 
tunity. It really is landmark legislation. It has a lot of creative 
originality about it. Unfortunately, we Natives do have to work 
through the Department of the Interior which, unfortunately, is not 
noted for its creative attitude. 

Alaska Natives generally shudder whenever the Secretary stands 
up — whatever his name — to announce that as the protector of the 
greater public good he has acted. We immediately conjecture as to 
what we are about to lose. And that is the truth about most of our 
negotiations. 

Mr. Bruce. Why wasn't Alaska included in Public Law 638? We 
are making the recommendation, or the staff has, that they be in- 
cluded. And in 638 for self-determination grants. 



255 



Mr. Alexander. They were included. The problem is defining 
what is the tribal government for Alaska? Which one of the competing 
corporate, municipal, tribal entities should be the contracting agent? 
Who should receive the 104 funds? 

What we have done is make a recommendation of a priority system 
of where that money should go. Alaska is included but it is vague and 
ambiguous. It is left to the area director's determination. 

In Commissioner Borbridge's region, the Tlinget-Haida Council has 
a long history as a tribal government and it maintains it should be 
the recipient of funds. In other areas of Alaska, the individual Native 
villages maintain they should be the recipients of the 638 funds. 

What we have done is propose what we believe to be a rational 
priority system for determining who should get the funds. 

Mr. Meeds. I have a question. Perhaps Commissioner Borbridge 
can answer it. 

In instances where Native villages have the right to make decisions 
which affect residents of those villages who are non-Native and who 
have not been designated as Natives, do those non-Natives have any 
representation or input in that decisionmaking process? 

Mr. Alexander. It will almost have to go village by village. Most 
of the villages that have a non-Native population of any significance 
tend to be municipal corporations. As municipal corporations all people 
in the village have input. The governing powers of the ICA Councils, 
although not completely out of existence, have seen some atrophy 
over a period of time. 

Mr. Borbridge. The Congress, with your participation, foresaw 
this problem and provided with specific reference to the land, that no 
less than 1,280 acreas should be transferred to the municipality or in 
the event a municipal form of government under State charter had 
not been formed, this land would be held in trust until the municipality 
was formed. Thus, with respect to such land areas as the villages now 
encompasse, plus the additional area, all of that land collectively 
would fall within the jurisdiction of the municipality with their form 
of government. It would be chartered under Alaska State law. 

Under those circumstances the Natives and non-Natives who are 
members of the municipality could have equal rights. 

Mr. Meeds. These are governmental decisions? 

Mr. Borbridge. These are governmental decisions. 

Mr. Meeds. The same jurisdictional type of questions we have 
been addressing earlier in the sessions on taxation, zoning, and other 
governmental powers. 

Mr. Borbridge. Yes. Thus, with respect to the remaining lands, 
that is, the corporation-owned lands, these would fall, of course, 
within the jurisdiction of the corporations. 

Mr. Meeds. There are no non-Natives in the corporations. Only 
Natives can hold stock at this time in the corporations? 

Mr. Borbridge. Yes; except to such extent a non-Native might 
inherit stock where there were perhaps no Native individual that 
was designated in the will, then this would be nonvoting stock. 

Mr. Meeds. That stock will become alienable in 1991, at which 
time conceivably, non-Native would also have input through stock 
ownership of the corporations. 



256 



Mr. B orb ridge. Assuming non-Native ownership that might occur, 
I d light concur with what the staff alluded to us a concern. The 
Congress further saw in consideration of the act that it was important 
the Alaska Natives have an opportunity to acquire the experience and 
sophistication to be derived from operating in a corporate environ- 
ment which as a means of implementation of a Claims Settlement Act 
was unprecedented in the history of our country. 

As a consequence, an unfortunate consequence because of the delay 
in the transfer of land, the period during which the Natives adminis- 
tered both the funds and actually gained the experience of administer- 
ing their affairs pertaining to their land has been delayed. The actual 
period in which they will have opportunity to gain experience and 
sophistication instead of being 20 years is going to be less than 15 and 
perhaps even closer to 10 years. 

Mr. Whitecrow. Commissioner Borbridge, I want to apoligize 
for not knowing enough about Alaska to ask really sensible questions. 
But I would like to give you a word of caution. For the allotted 
schedule of lands in Oklahoma is one I would certainly recommend 
that you look at. That particular procedure allowed tribes in Okla- 
homa to lose not just the majority but an overwhelming majority of 
their landholdings by issuing fee patents to individual tribal members. 

Many of these tribal members have lost lands and as a result the 
total depletion of Indian lands in the State of Oklahoma has been 
almost complete. Insofar as your stock certificates now, I understand 
at the end of 20 years your stock certificates will be eligible for pur- 
chase by non-Indians or anyone who will be available to purchase 
those. 

Are you talking about the actual possibility of loss of your lands up 
there through this process? 

Mr. Borbridge. Yes. In response to the question, the answer is 
yes. I think for one who apoligizes for a lack of knowledge, you have 
put your finger on one of the overriding and fundamental issues that 
is of great concern not only to the Alaska Natives but to the friends of 
the Alaska Natives who worked with us for passage of the Claims 
Settlement Act. 

Koughly, this is what could occur in 1991. There could be a loss of 
control of the corporations, assuming there is an acquisition of con- 
trolling stock by nonnatives. This, of course, would mean control 
of the assets. When we talk about assets, we are talking about not 
only financial assets but we are also talking about land and land 
resources. Thus, 1991 is a very landmark date and I think is a specific 
time at which to view how successful the entire settlement act has 
been. 

We are really dealing with two broad areas and you have correctly 
identified this. One is how the act operates now. But assuming that in 
the intervening 20 years we have become highly successful and I have 
assurances we are going to achieve a good measure of success, then, 
of course, a takeover of some kind in 1991 could still very well occur. 

Thus, the more successful we are and the better the act operates, 
the more attractive we will be to other corporations that are well 
financed and may be desirous of acquiring whatever assets we may 
have. 



257 



Mr. Whitecrow. I might give you a word of caution and ask you 
to consider this aspect of it. We have one tribe in the State of Okla- 
homa, the Osage Tribe, who developed headrights on their mineral 
holdings and as a result now, through the process of many, many 
years we have a great deal of non-Indians who arc headlight owners in 
that tribe and in effect are controlling the assets and mineral rights of 
that particular tribe. 

As a result of this, we also have fullblood Indians now who are of 
Osage descent and are not headright owners and have no voice in their 
own tribal government. I would like to caution you. If this is a pos- 
sibility, I would certainly look toward this and ask the staff the in- 
dividual Indian loss of land should be taken into consideration. 

Mr. Alexander. The voluntary loss of land is not the only po- 
tential problem. The involuntary loss — Commissioner Borbridge is 
1,000 percent correct. The pass through to the individual native may 
not be sufficient in debt proceedings, in inheritance tax* is, in getting 
on State welfare. What is the status of that stock certificate to the 
State? If the individual native's economic condition is not highly 
substantially raised — you have to take into account the economic E 
Alaska, whatever is a reasonable income here, double it for Alaska. 
As we take cabs to go around Washington, you can spend $1,000 
in an afternoon going to two or three villages by plane. 

The threat of involuntary loss of stock certificates in divorce pro- 
ceedings, inheritance proceedings, through State welfare proceedings, 
is significant and substantial. The Native Corporations in Ala<k< 
and the AFN and others are doin«- major education programs as I > 
the voluntary component of selling stock certificates. Hopefully, 
that will be successful. But that other component is extremely 
dangerous. 

Mr. Whitecrow. I might say this. From the standpoint of many 
of the tribes we are working with today, we are looking at the pos- 
sibility of allowing those tribes to rebuild a land base. If you can 
take from past experience we have had in Oklahoma, we have lost a 
great deal of our land 1 . 1 I would certainly caution you to take every 
precaution from the Indian standpoint to not allow yourselves to get 
into that particular category. 

We must now begin rebuilding a land base of some sort if we hope 
to achieve any kind of self-sufficiency as a tribe. 

Mr. Meeds. That reminds me of the ammunition given to the 
Indians who met Columbus and they were told by those who foresaw 
things, that perhaps their immigration policies were a little too lax. 

Are there further comments or questions? 

Mr. Dial. Now that we are leaving Alaska, I hope someone will 
turn on the heat; the air-conditioning is on. 

Mr. Borbridge. Certainly, I want to acknowledge the oversight 
hearings conducted by the House Subcommittee on Indian Affairs. As 
a consequence of the oversight hearing, fundamentally important 
legislation was passed. This resulted specifically in passage of the 
omnibus bill which was signed into law January 2, 1970, and from the 
viewpoint of some of the corporations, including Sealaska, this " 
landmark legislation and I want to acknowledge the time and attention 
that went into its enactment. 



258 



At a later point, the Senate Interior and [nsular Affairs Commit tee 
also conducted oversight hearings. Notwithstanding all of this valuable 
and vital help, the legislation is an evolving mechanism which from 
time to time discloses new problems that emerge; without these 
efforts we would have been troubled by other more fundamental issues 
which may have troubled us far more. 

Another vital matter. One of the provisions included as an amend- 
ment to the Settlement Act was the provision referred to as the 
Buckley amendment. The Buckley amendment recognized if there 
were any delay in the payment of the $500 million due to be derived 
primarily from revenues, coming from and following as a result of the 
construction of the pipelines, there would be an erosion in the value 
of those moneys. Congress recognized then, that a delay in the con- 
struction of the pipeline would result in a delay in payments to the 
Alaska Natives, thus reducing the worth of that money. It provided 
that there should be payments forthcoming with $5 miliion to be paid 
the latter half of calendar vear 1975, and payment of an additional 
$5 million the first half of calendar 1976. 

Unfortunately, although Congress made it quite clear that it 
recognized as justifiable the concern the Alaska Natives advanced and 
in fact Congress did pass this amendment, the natives were subse- 
quently advised that although the Department of the Interior sought 
funding for this provision, unilaterally, and without any notification 
to the Alaska Natives, and, it appears, without any notification to the 
Congress, the Office of Management and Budget urged striking out 
any recommendation for funding this provision. 

To me, this illustrates in a most graphic form the arrogance and the 
insensitivity of the Office of Management and Budget which not only 
unilaterally acted contrary to what Congress declared it wished to 
have done, but it did so without any notification whatsoever to the 
Alaska Natives whose rights were affected. 

I might add that a number of our friends in the Congress have 
sought to correct this inequity, but unsuccessfully. The Congress 
recognized the problems in good faith they acted on the matter, but 
not only the will of the Natives but their will as well was frustrated. 

With respect to another item, the delivery of services in Alaska is 
obviously impacted by the higher cost of living, that is, the higher 
cost of the delivery of such services. 

Has staff actually put together any figures that might be derived 
from either so-called marketbasket studies or Bureau of Labor 
Statistics? If these have not been forthcoming, I would urge that such 
figures be included since it gives a sense of specificity to am~one who 
views that as a specific problem. 

Other than that, I would quickly point to the effect of inflation on 
the value of the Settlement Act since it was determined that the 
federally appropriated funds of $462.5 million would be paid over 
an 11-year period of time; the $500 million to be derived from a 2- 
percent override of royalty at a less certain schedule although the 
State of Alaska projects complete payment of that sum in about 6 
years. I see no specific answer here. The Alaska Natives will appar- 
ently share the damage from inflation that has struck the Nation. 
But nevertheless, these are the unfortunate consequence of the infla- 
tion on our Settlement Act funds. 



259 



Other than that I will quickly point to tho fact that under section 
17(d)(2) of the Settlement Act of 1971, approximately 30 million-plus 
acres of land will be selected and classified. There will he an impact 
on the Alaska Natives, thus requiring us to recognize that massive 
changes are taking place in Alaska. Oil exploration and development 
is again going to pose some tremendous pressure on the Alaska 
Natives. 

Further, we need to educate Native Corporation stockholders. 
While the corporations involved have made efforts to educate their 
stockholders, it would appear there are other agencies that should 
undertake to assist the Alaska Natives to fulfill this particular re- 
sponsibility that I regard as a very fundamental one. 

Mr. Meeds. If there are no further questions or comments, we 
stand in recess until 1 :30. 

[Whereupon, at 12:15 p.m., the meeting was recessed for lunch, to 
reconvene the same day at 1 :30 p.m.] 

AFTERNOON SESSION 

Mr. Meeds. The Commission will be in session for further con- 
sideration on the chapters prepared by the staff. 

The next order of business is "Chapter 14, Special Problem Areas — 
Oklahoma." Mr. Wharton is the lead staff member. Please proceed 
first to give us an overview of the work of the task forces, and then 
the recommendations made by the staff. 

Mr. Wharton. If the Commissioners will take notice, there is, I 
hope, a table of contents at the beginning of chapter 14 in each of 
your books with respect to the task forces. Most of our task forces 
held hearings in Oklahoma. 

However, with the exception of task force 1, none of the task 
forces gave it extensive coverage. We do not at the present time have 
for consideration of the Commissioners any recommendation on this 
subject because it has not been sufficiently developed to support 
recommendations at this time. 

The reason I asked you to look at the table of contents is because 
it will give you very quickly a view that the Oklahoma Indians face 
many of the same problems faced by Indians all over the rest of the 
Nation. You might then ask why it has separate treatment. The 
reason for that, the genesis of those differences, comes from the separate 
jurisdictional statutes affecting the State of Oklahoma. 

That legislation has created a great deal of confusion and un- 
certainty about the status of the tribes. 

Mr. Meeds. Which legislation was that? 

Mr. Wharton. There are a couple. There was the Territorial Act, 
the Organic Act, and the Statehood Acts of Oklahoma, the Curtis 
Act of 1906, with respect to the Five Civilized Tribes in the eastern 
part of Oklahoma. 

There are a number of specific statutes in title 25 which separate 
out Oklahoma Indians for special treatment. An example would be 
the State of Oklahoma exercises jurisdiction specifically by statute 
over probate matters, putting those matters into the court of the 
State and allowing through that process the loss of significant amounts 
of Indian land. 



260 



I think it needs to be noted western and eastern Oklahoma are 
significantly different in the laws that affect them. The laws are 
different. The United Tribes of Western Oklahoma and Kansas have 
been to Washington, D.C., particularly in the last 3 years to a^k the 
Department of the Interior to assist them in clarifying the status dt 
those laws. Interior has failed to do that in the first two requests and 
has finally contracted with that organization to do a paper for them. 
That paper is now in process. 

So there has been some minimal steps to begin to clarify that 
situation. There is in the U.S. District Court of Western Oklahoma 
at this time a hunting and fishing case filed by the Cheyenne and 
Arapaho Tribes, to clarify their hunting rights. 

I think the whole history of the development of Oklahoma >ets up 
why they are in the position they are in, Oklahoma being originally 
designated as that part of the country which was to be Indian country. 

They moved Indian tribes from virtually every direction of the 
compass into Oklahoma, the boundaries of the reservations established 
in the State take in virtually the entirety of the State. There i- □ > 
specific piece of legislation which has ever disestablished those bound- 
aries with the exception 1 think of the Pone a and Otoe-Missouria 
Tribes. 

So the issue of the reservation boundaries is still very much alive 
in the State. That creates problems for both the State and the Indian 
people there. 

We are in the process of developing now for the Commission an 
extensive historical document on Oklahoma, that will be ready at the 
January meeting. From the results of most of the hearings from the 
task forces and from the testimony of the tribes and the people of 
Oklahoma, it is our opinion that one of the recommendations we will 
make to the Commission is that Congress undertake a special study 
of the problems in Oklahoma, that i< universally supported by the 
western tribes and by most of the eastern tribes. 

Mr. Meeds. Any questions or comments by the members of the 
Commission? 

Mr. Whitecrow. Mr. Chairman, as a Commissioner sitting on this 
Commission from the State of Oklahoma, I would like to insert into 
the record some comments in regard to statements received by the 
Creek Tribe; for the benefit of Commissioner Dial, it is only 25 pages 
in length. 

Mr. Meeds. Without objection, it will be received. 

Mr. Whitecrow. The Creek Tribe, I would like to inform the 
Commission, I did on the third of November send out a letter to the 
chiefs and second chiefs of all of the tribes in the State of Oklahoma 
plus those tribes in the State of Kansas delivering in their hands 
summary statements and the recommendations of each of the 11 
task forces and bringing to their attention also the BIA management 
study and its preliminary recommendations. 

I also brought to their attention some general comments which I 
felt were most appropriate and would be issues of this particular 
meeting. Those being issues regarding jurisdiction, sovereignty, trust 
relationships and also the deliberation^ that would come about insofar 
as recommending a definition of a tribe and the identification of an 
Indian. 



261 



I also requested their thoughts in regard to a continuation of health 
and educational and other services along with what their recommcnda- 
tions might be in regard to ftinditig necessary for them to begin re- 
claiming their land base and to develop economic enterprises which 
would allow self-sufficiency to come about for each of the tribes within 
those areas. 

I would like to just in summary state what the chief of the Creek 
Nation states: The concept of tribal sovereignty is the single most 
important philosophy to define the entire Federal/Indian relationship. 
Philosophically, sovereignty belongs to the entire people of the na- 
tion. The people of any nation have the right to utilize the sovereignty 
by creating a government and delegating certain sovereign powers 
to it. Only those powers delegated to a government by its people are 
legitimate. The government is not sovereign in and of itself, but it 
exercises those sovereign powers which its people have chosen to 
give it. While it is prohibited from exercising those powers which the 
people have kept from it, the U.S. people have never specifically 
ordained the U.S. Government to exercise plenary powers over 
the respective nations of American Indians and their governments. 

The regulation of commerce of the Indian nations, the making of 
treaties and powers logically derive from the warmaking powers of 
government, and these are the only three areas where constitutionality 
and legitimately the U.S. Government is empowered to interact with 
Indian nations. 

In the subject of jurisdiction I would like to read this: Jurisdiction 
is the combination of methods which a government uses in the legiti- 
mate exercise of its sovereignty. Traditionally, in both Creek and 
European governments those methods are categorized into executive 
jurisdiction, legislative jurisdiction, and judicial jurisdiction. In the 
exercise of jurisdiction, certain tools are utilized and those tools provide 
metes and bounds within which the jurisdiction can be exercised and 
without which it cannot. Each of the legitimate branches of Creek 
government has suffered from the brutal policies of the Department 
of the Interior, often with the approval of Congress. The Creek 
courts were closed never to reopen. The national council was first 
emasculated by provisions of Federal law which flagrantly rendered 
tribal laws unenforceable. And then the council was disbanded through 
a series of events which Judge Bryant described so well in a recent 
case whereby it was ruled the original Creek constitution of 1867 
was still in effect, and as such the original Creek tribal government 
was the governing body for the Creek Nation. 

In the aspect of taxation a statement is made here also, in the 
definition of tribes, the tribal government — I would like to read this 
for the interest of the Commissioners at the present time. 

Chief Cox states : 

Our response to the task force recommendations you provided will be forwarded 
prior to the December meeting. I am sorry time did not permit the development 
of adequate responses. However, I can assure you our December letter will be 
supportive of the task force recommendations with additional recommendations 
based upon our tribal perspective and goals. 

This gives us a pretty good line of thought with this letter insofar 
as the attitude of the Creek Nation and pretty well exemplifies the 
attitude of the other tribes within the State to a great extent. 

82-749— 77— vol. 4 18 



262 



This letter pretty well spells out the fact the tribes do feel the 
original geographic areas by treaty are still in effect and inasmuch 
as we have not yet found any legislation or court action that in 
effect does detract or take away or abolish that original treaty geo- 
graphic boundary area, the tribes feel, and evidently the courts back 
it up, that those original geographic areas are still in effect and they 
do have jurisdiction. And this is one tribe that has expressed its desire 
to resume its responsibility to the people. 

Mr. Meeds. Questions or comments by the Commission or by the 
staff? 

Mr. Taylor. I might speak to the Oklahoma situation for a 
moment. Don Wharton and I were present at 4 days of hearings in 
the State of Oklahoma, taking testimony on a whole range of issues 
including Federal administration, reservation boundaries, rjroblems 
with natural resources, problems with land base. 

As Don has said, we found many problems in the State of Oklahoma 
which are very, very similar to problems of tribes in other States. 
This is particularly true in connection with Federal administration, 
delivery of services, CETA type problems, IHS, urban Indian problems 
in the State of Oklahoma. 

In the matter of jurisdiction, as Don has pointed out, there are very 
complicating factors in the State of Oklahoma. The specific legislation 
Don alluded to is a very difficult problem. It is one of the first letters 
we received on our task force 9, I believe, from the Chief of the 
Creek Nation, enclosing a copy of the Curtis act and the act of 1906. 
It is an incredibly shocking document, when it is understood what 
we do to those tribes. 

I realize this is history. I am sure you, Mr. Meeds, are quite well 
aware of it as well as all of the other Indian Commissioners who are 
here. I think what we are looking toward in Oklahoma is to try to 
develop some jurisdictional system which could enable these tribes to 
restore their tribal government, get back on their feet, reacquire a 
land base and exercise jurisdictional capabilities that would be 
commensurate with the historical pattern of Oklahoma. As Don says, 
the entire State is comprised of reservation boundaries or areas which 
either were reservations or continue to be to this day by reason of not 
having been formalh' disestablished. There is a rather confusing juris- 
dictional picture that emerges because of judicial decisions. In fact, 
an additional sidelight to these problems, in 1953 when Public Law 
280 was being developed, the Governor of the State of Oklahoma was 
contacted to find out whether he wanted his tribes in the State to be 
brought under the act; his reply was it was not necessary, they already 
had jurisdiction. 

In fact, there was no specific legislation that ever transferred 
jurisdiction from the United States to the State of Oklahoma, at least 
in the western half of that State; the historical picture in Oklahoma 
indicates tribal courts survived in the western half of that State up 
until the 1940's I believe. 

This is a pattern of conduct which would be totally inconsistent if 
the reservations had been disestablished or the tribes terminated. 
What I am saying here is there is a confusing jurisdictional picture in 
the State of Oklahoma. The reservation patterns within the State 
are unique, and we are working to develop some specific recommenda- 
tions that would address the problems that we found in that State. 



203 



Mr. Meeds. Farther comments or que.^i.ms? If not, thank you 
very much. 

Mr. Whitecrow. Mr. Chairman, before we proceed and realizing 
we do have some special recommendations to look forward to in our 
coming meeting in January, I would like to notify Commissioner Dial 
we are now ready to move on to South Caroline. 

Mr. Meeds. Thank you very much, gentlemen. The next order of 
business is chapter 11, terminated Indians. 

Don Wharton also has the lead responsibility on this. 

Mr. Wharton. With respect to terminated Indians, if you will 
turn to page 15 of that chapter, you will find we are asking the Com- 
mission to adopt general provisions proposed beginning at page 13 
©f that chapter. 

Congressman Meeds. This was the work of what task forces? 

Mr. Wharton. This was the work of task force 10, specifically given 
the responsibility to address terminated and nonrecognized Indian 
people. 

Mr. Meeds. What is the staff's opinion of the work done by the 
task force and the basis of the recommendations made? Is it well 
supported and documented? 

Mr. Wharton. With respect to terminated Indians which this 
chapter addresses, I think the task force work in this area was quite 
good, particularly as reflected in their proposed recommendations for 
legislation on how to deal with the problem. 

Mr. Meeds. W T ould you like to proceed to summarize the recom- 
mendations beginning on page 13? 

Mr. Wharton. This particular list of recommendations comes 
specifically out of a paper developed by Charles Wilkinson submitted 
to the task force suggesting to Congress how they might deal with 
this problem. 

It sets up first of all congressional policy which would reverse the 
policy set forth specifically in House Concurrent Resolution 108, 
which as you know is the one that sets forth the policy of termination 
and assimilation, although there has been subsequent legislation which 
in spirit reverses that policy, House Concurrent Resolution 108 has 
never been specifically renounced. 

As a first step, they would suggest that ought to be done. Ernie 
Stevens has spoken many times about the problems of the termination 
monster and what sort of psychological effects that has on Indian 
people and how they behave and expect the Congress to behave. 
Removal of that resolution or renouncing that resolution would go 
far toward assuring Indian people of Congress' intent not to follow 
that policy any further. 

It also has impacts with respect to how the Federal agencies deal 
with the Indian people. It has been the finding and the impression of 
many of the people on the task forces in taking testimony of Indian 
people that there are Federal administrators throughout the system 
which still reflect the termination policy in the way they administer 
to Indian affairs, and that is their view of the Government's policy in 
dealing in Indian affairs. That is the beginning; and to renounce 
House Concurrent Resolution 108. 

Mr. Meeds. Can you point to any specific acts in the past 2 years 
by individuals or a policy of a bureau or any other Federal agency 
which support what you just said? 



264 



Mr. Alexander. There is substantial feeling, at least in southern 
California, that Public Law 638 as explained to Indian people by 
Bureau officials is termination legislation. And that view was expressed 
to us time and time again in southern California by tribal officials 
who base their information on Bureau explanations. 

Mr. Meeds. Are there any papers, directives, or orders, which 
contain this explanation? 

Mr. Alexander. The Bureau's explanation of 638 on paper is 
extremely complicated and complex. Most of the communications we 
hear about in Indian country are not official directives, but the im- 
plicit and sometimes explicit statements "off the record" by Bureau 
officials to Indian official tribal people, tribal leaders, particularly in 
the 638 context which 1 am most familiar with. 

As a matter of fact in our hearings in Escondido a number of 
tribal officials came with posters or placards saying "638 is a guise 
for termination" and handing out leaflets to that effect. 

No amount of explanation on our part as to what the congressional 
intention was, was sufficient to overturn what has been termed by 
Ernie Stevens as the "termination monster". And there is tribal 
experience relating to the southern part of Arizona where tribes have 
contracted — the Apaches particularly — for law enforcement services 
to find their funds under those contracts stagnating and not increasing, 
being forced — with inflation — to turn tho<e functions back to the 
Bureau and then the Bureau's budget was increased by 50 percent. 
The tribes view suspiciously many of these programs. 

To put it straight, many of the tribes feel the Bureau is standing 
around and sort of out of the corner of their mouths saying we are 
going to let you do this and we are going to let }^ou do it in such a 
way that you fail, and we are kind of hoping that you fail. 

There is great fear. To repeat what Mr. Wharton said, the con- 
tinued existence of Hou<e Resolution 108 adds substance to that 
fear. 

Mr. Taylor. Mr. Chairman, if I could address myself to the 638 
problem for a moment, I think the best explanation I heard was when 
Alan Parker testified here, I believe for the third quarter report. 
One of the great concerns about the contracting procedure is that if 
the tribes take over programs there is less need for personnel in the 
Bureau of Indian Affairs. However, the BIA continues to have re- 
sponsibility in other areas with respect to other tribes. 

Typically because of OMB and the Secretary of Interior and the 
budget process. BIA, as with even- Federal agency, does not get enough 
funds to do its job right. So as their problems mount in an area where 
they continue to have responsibility, the BIA tends to cut back on 
that funding which goes to the tribes under Public Law 638 in order 
that the}' can perform their own functions properly. 

As the tribe that contracted the program starts to go under, they 
turn around to BIA and say, hey, man, we can't do it; take it back — 
BIA is then in the position, due to attrition of personnel, of saying 
we don't have the personnel, we can't do it. But BIA does take the 
program back. At least this has been a pattern under 638. Whether 
that pattern will be able to continue — but when BIA pulls the program 
back, then the)' pull the plug in other necessary funding. 



265 



I think these fears are very legitimate. T am not privy to any of 
these rumors of the Bureau of Indian Affairs threatening people, 
but I have heard of some of them. I am inclined to be a little dubious 
about it. 

I d ) feel the concern is very legitimate and I suspect the concern of 
BIA is also very legitimate. I think part of this arises through the 
funding process. Perhaps if there could be some sort of long-term 
funding which I think would fit very much into Ernie's concepts, 
number one, in budget processing, number two, on needs for economic 
development, that might help alleviate some of these fears. 

But I don't think these fears are totally groundless. 

Mr. M eeds. They are a natural consequence of the very bureau 
whose existence is dependent upon what it is doing now, administering 
legislation which will cut into that turf. I think it is a natural and 
approximate consequence of the situation in which they are placed. 

Mr. Taylor. There is clearly a conflict of interest there, which is 
what I think you are saying. By the same token, as the tribes look 
at this and as I think the BIA looks at it, down the road there does 
come a threat of eventual termination of the Federal trust responsibil- 
ity. This is a legitimate concern and I think we must address it. 

Probably we will be able to handle some of that in Federal admin- 
istration and economic development. I might say Task Force Number 
Two dealt rather clearly with this 638 funding problem. 

Mr. Deer. I would like to have clarified for my own information, 
I have heard the resolutions of Congress only pertain to that particu- 
lar session of Congress and at the end, the resolutions no longer apply. 
On the other hand, we have this resolution that stands on the books. 

I would like to know if some action needs to be taken by the House 
to repudiate that action? 

Mr. Meeds. As Commissioner Deer will recall, we discussed this 
matter a number of years ago and took that action which we felt 
would be the most permanent one. And which bound the Congress 
more than a concurrent resolution. That was the restoration of the 
Menominee. I don't know what more proof is needed. 

But obviously, facing that issue head on and saying straightaway 
the passage of a certain resolution wipes out the policy of 108, I don't 
think that is a difficult task. 

Mr. Deer. I have heard that pertains to the Menominee, but what 
about the rest of us? 

Mr. Bruce. Mr. Chairman, the Menominee restoration which was 
addressed in 1973 at that time why didn't it include, why wasn't a 
general restoration act passed? As I recall, it would be on a tribe-by- 
tribe basis. That is why it was not included in the general restoration 
act at that time. 

Mr. Meed. If I could answer the question, there are a number of 
reasons why a general restoration act w r as not passed. The only tribe 
which had done its homework and was in a position to be restored 
at that time was the Menominee. It was felt that we should proceed 
with that as indicative of the mood of the Congress. The Congress at 
least was prepared to take these on an ad hoc one-by-one basis. 

I think personally, the suggestion of the task force and the staff 
here for some omnibus restoration legislation, along certain guide- 



266 



lines, and certain methods, is a good suggestion. Then you can make 
it in effect an administrative matter which makes it much easier. 

Mr. Bruce. What you are saying, Commissioner, instead of repeal- 
ing 108, the passing of the Menominee Act eliminates 108? As I 
interpret it? We have been tr}dng to get that House concurrent 
resolution repealed. We have had some difficulty and it always cro 
up a number of times. 

I wonder what the explanation is for not being able to repeal it. 
If it wasn't there, we would all feel a lot better. 

Mr. Meeds. I think primarily because nobody has ever tried very 
hard to repeal it. The conclusion by some of us who were involved 
was that the best evidence of the change in policy was to restore to 
the tribes which had been terminated, and that ought to be pretty 
graphic evidence of repudiation of the policy under which termination 
took place. 

If there is still a big question in the Indian wwld, I don't think I 
see any problem with repudiation of 108 specifically. 

Mr. Whitecrow. Mr. Chairman, if I may, I would like to allude to 
this situation for just a moment. Inasmuch as in the northeast corner 
of Oklahoma from whence I came and hope to go back, we have the 
only terminated tribes in the State of Oklahoma in that immediate 
area, and I can certainly attest to the fact thi< restoration is an abso- 
lute necessity if we "continue allowing people to work with Indian 
people." Because that in effect has brought about a conflict within 
our area as to recognized Indians fighting to terminate Indians and in 
effect could perhaps bring some violence in our area because of the 
atmosphere that has been developed just in the past 2 years in regard 
to recognition of Indians. 

Does the termination bill itself really, in effect, terminate a person's 
heritage? Does this congressional act terminate an individual's 
heritage as an Indian? This is a tremendous problem we have in our 
area and I can also attest to the fact that within the Bureau structure 
we still have OE's within that system who still feel House Con- 
current Resolution 108 is still the policy of the Congress until it 
repudiates it officially. 

Mr. Meeds. Further questions or suggestions by the Commission 
or by the staff? 

Mr. Whartox. To the extent the specific philosophy of this 
suggested recommendation is to provide an administrative proc bss 
where the tribes sit dowm individualy with the Secretary of the 
Interior and negotiate with that individual a restoration process which 
is then ratified by Congress. 

I guess the particulars are not necessary but that is the philosophy of 
these recommendations. 

Mr. Meeds. I guess the Congress passes a general act and then 
proceeds 

Mr. Alexander. In working out some of these, we will look to the 
restoration experience of the Menominee and the experience on time 
frames and negotiations Commissioner Deer has expressed, the 
necessity of involving the State at the discussion levels so there will 
not be uncertainty as to transfer of functions and so on. We will take 
those factors into account. 



267 



Mr. Wharton. I would point out one other provision rather 
important on page 14, number six, that is aothing in the act alters 
preexisting rights or obligations or affects the status of any federally 
recognized tribe. 

As you know, with respect to the Klamaths and previously with the 
Menominee, there are preexisting treaty rights which were not 
terminated in the termination process and nothing in the Restoration 
Act would be construed to affect those rights as they exist today. 

It also is becoming an issue 

Mr. Bruce. Interim recommendations, whose recommendation was 
that? Definition of an Indian? 

Mr. Wharton. Task Force 10. That is taken from the task force 
report. 

Mr. Bruce. It is under recommendations. 

Mr. Wharton. We are not suggesting that as a staff, we are 
reporting that as a task force recommendation. 

Mr. Bruce. I read up there that Congress should in the meantime 
do the following, and it is listed under the following. Also, I want to 
call your attention to item four, direct the GAO to immediately 
proceed with full and complete investigations of the trust mismanage- 
ment of assets. 

Is that a recommendation? 

Mr. Alexander. What we were attempting to get consensus on 
today was the restoration process. We are not specifically prepared to 
adopt the specific recommendations. As a general proposition, we 
tend to have staff support, but we were focusing on broader issues, 
how to establish a restoration process. When we come back to you in 
January with the draft, we will be very specific on implementing 
the recommendations that in terms of Indian recognition, other task 
forces have come up with other alternatives and the resolution of that 
is going to have to occur between now and January. 

Mr. W t harton. I expect we will have some of these recommenda- 
tions as you see them when we come back in January, number four in 
particular. As you well know, there were substantial conferences, 
there is a real problem of how those were handled in the termination 
process. So I imagine we will have some recommendations when we 
return with respect to those. 

Mr. Whitecrow. These are not staff recommendations here? 

Mr. Alexander. We are not adopting them at this point in time 
because of the necessity to touch each of the issues. The most important 
issue is the restoration. Congress should consistently repudiate 
Concurrent Resolution 108. It will require tribe-by-tribe negotiation 
then, but that it be the policy of the United States to restore tribes. 

What we are doing is asking you in a sense to consent to our direction 
on that chapter and then we will work out recommendations jumping 
off from what the task force said. But we have not evaluated each 
and every one of those recommendations. 

Mr. Whitecrow. In that event, I would suggest we make it very 
clear that this definition of Indian is not the Commission's recom- 
mendation but rather a definition to be considered. 

Mr. Wharton. I would expand that to all of the recommendations 
at this time. 



268 



Mr. Whitecrow. What I am fearful of is if that definition should 

get out 

Mr. Bruce. It does include Alaska Natives. 

Mr. Alexander. Commissioner Whitecrow, page 15, it says — we 
are quite specific in what we are asking for which is at this point the 
adoption of the general provisions cf the proposed legislation becaufeti 
we are going to have to work out this area of the interim recommenda- 
tions. If you have specific questions or criticism or critique of that 
statement. On page 14 : 

for the purpose of services, programs and benefits, direct all Federal Departments 
and agencies to serve all Indians, notwithstanding provisions of the laws to the 
contrary regarding specific tribes and appropriate funds necessary to carry out 
the directive. 

If you would like to give us your views on that for our edification 
we would appreciate it. 

Mr. Deer. Do we have any idea of how many tribes we are 
talking about? 

Mr. Wharton. That is listed on page 1 of this chapter. 

Mr. Whitecrow. Is this a complete list? 

Mr. Wharton. To the best of my knowledge, Commissioner, it is. 
Mr. Whitecrow. This would include all of those Agua Calientes 
in California? 

Mr. Wharton. Only by reference, yes. 

Mr. W t hitecrow. If I understand you correctly, these are interim 
recommendations. You are recommending all services, programs, and 
benefits would be immediately available in the interim? 

Mr. Wharton. We are not making any interim recommendations 
at this time. 

Mr. Alexander. That is task force 10's recommendation and that 
hopefully will be circulated for comment and criticism as soon as 
that task force is published and available. It is not a staff recommen- 
dation, however. 

Mr. Taylor. I think we could use some guidance, Commissioner. 
On page 14, paragraph 2, that has the definition. If the consensus 
of this Commission is opposed to that definition, right now I think 
we ought to take it out before it is circulated. Task Force 10's report; 
we are preparing a final report. 

Mr. Whitecrow. If I may comment upon this, again, I would 
like to refer to the sovereign issue. If we come through with any 
sort of legislative definition of an Indian as to whc is an Indian, 
what is an Indian, I feel we are impinging upon the sovereignty of 
the tribe in allowing that particular tribe to determine who its own 
members are. 

Mr. Meeds. I don't see this definition as doing that at all. It says 
whoever is a member or descendant of a member of a North American 
tribe. If you have tribes define their membership then that person 
would be 

Mr. Whitecrow. The descendant of a member is the issue I am 
concerned with here, because we do have some tribal constitutions 
that do not recognize all descendants. They have got to go through 
the membership process. 

Mr. Dial. Mr. Chairman, a couple of days ago we passed a motion 
on recognition. Perhaps they could work out something on definition 



269 



along with this. You don't have time to settle it now. Paul and the 
boys are to bring something back to the next meeting on the next 
step dealing with recognition; why couldn't they deal with definition 
also? 

Mr. Meeds. My personal belief is that if we terminated our work 
and write our report without a definition of who is an Indian, we will 
have failed miserably in our recommendations. 

Mr. Dial. I agree. I am not saying I have any hangups here with 
this definition but some apparently have a hangup with the definition 
and I am just speaking for myself because I am getting ready to walk 
out and then you won't have a quorum and you are going to be in 
the same position— I have to catch a flight at 3:20, if you are going 
to have a vote 

Mr. Meeds. Maybe we could do as the Plains Indians used to do, 
operate by consensus. I would suggest the staff provide us with some 
recommendations, maybe a number of alternatives, for the definition 
of who is an Indian. That way we would have a number of alternatives 
for that definition, to vote on at our next meeting. 

Is that acceptable? 

Mr. Dial. Very good. 

Mr. Deer. I would like to also suggest we have some alternatives 
for definition of tribe. I think we need to have some real thought 
given to that also. 

Mr. Meeds. I think that is an excellent suggestion. Obviously the 
key to establishing who is an Indian, f we want to recommend some- 
thing, is going to be establishing what is a tribe or recognized entity. 

I have no objection to that. Is there any objection to alternative 
definitions? 

Very well. 

Mr. Alexander. We will work in this direction and indicate to you 
when we produce this in January what is the preference of the Indian 
country in this area. 

Mr. Meeds. Also, some alternatives for what is Indian country? 

Mr. Alexander. No; I am saying picking up on what Senator 
Abourezk said. Consistent with what Senator Abourzek said and 
others on the panel have mentioned, when we work out what are 
reasonable alternatives, we will indicate to you what the Indian view 
is of these alternatives, including an alternative for no definition. 

Mr. Meeds. Could I also at least personally ask — ma} 7 be I already 
did this — other recommendations as to what is a reservation. You will 
recall back in the tribal government section there was a recommenda- 
tion for original boundaries for reservations and we asked for the map 
and everything. If it is not too much work, I would ask you personally 
to work out a definition which would encompass presently existing 
boundaries of reservations. 

Mr. Taylor. We will. 

Mr. Meeds. Are there further comments or questions? If not, very 
well, thank you very much, gentlemen. The last section is the general 
provisions section which is chapter 15 and which, as I recall, we 
started to discuss and then we decided we would discuss the more 
specific recommendations. 

Could we spend 20 minutes on this section? It is the intent of the 
Chair to adjourn at 3 o'clock. 



270 



Would you please proceed with the explanation and discussion of 
the specific recommendations? 

Mr. Alexander. This is a three part chapter. The first part 
contains the general state of knowledge concerning Indian affairs. 
The second part deals with our statutory mandate to consider alterna- 
tive elective Indian bodies. The third part is specifically dealing with 
task force 9's report on revision and consolidation of 25 U.S.C. 

On the first page, the state of knowledge concerning Indian affairs, 
I think it has been obvious from our discussion the last 4 or 5 days 
that continuous reference has been made to the lack of knowledge 
among the citizenry in general and in particular those people dealing in 
Indian affairs. And, in fact, our view is that there is lack of knowledge 
of the legal basis of the United States/tribal relationship, what the 
relationship of that is and what we are recommending is essentially 
mandatory training on Indian history, legal status and culture for 
any government employee administering programs in Indian affairs; 
that is State and Federal and it would be tied to Federal funding on 
the State and local thing to obviate any need to perceive a constitu- 
tional problem. 

What we would also like to do is have the educational institutions 
of this country through Congress and through some research and 
experimentation, take a good hard look at the curricula they use 
today and incorporate into that curricula ac curate views of American 
history, particularly Indian history, and the historical facts con- 
cerning the Federal Indian relationship. 

We have mentioned it before but it permeates all areas. You can 
go to the finest law school in this country and be a law journal student 
and what-have-you and not know one iota of information concerning 
Federal/Indian relations. You can go to a graduate school in this 
country and operate on a daily basis affecting Indian children and 
not know who you are dealing with, not know what the political 
status of the tribe you are interacting with. It just does not exist. 
It seems to me it needs a major congressional effort in this area, and 
that is what we are recommending. 

If you like, I can wait until the end of the whole chapter and we 
can take questions on specific components. 

The second part is alternative elected bodies. Simply put, what 
we are saying is there is no consensus in Indian country at the present 
time as to what method or mechanism would be appropriate, if any, 
for direct input into the congressional process, whether it be a non- 
voting delegate, whether it be an elected commission of some sort, 
an elected Congressman. What we are saying is there should be no 
congressional action in this area until the Indian people have a chance 
to formulate their views and at that time Congress should be respon- 
sive. It is not mandatory responsiveness, of course, but in good 
faith be responsive, and this report should highlight what some of 
the current options are, what some of the pro's and con's of those 
options are and we recommend no specific action for any of the 
particular alternatives. 

The third section of this report deals with task force 9 and our 
general staff — we agree it is the finest of all of the task force reports 
in our view. It is an extremely complex piece of work and the concept 
is it is an ongoing piece of work. What we are saying is it is to the 



271 



point and it should be submitted to the Congress, presumably the 
Judiciary Committee, or a joint committee of both Judiciary Com- 
mittees, with a recommendation that staff be provided to continue 
that work to fruition with hearing processes and allowing for addi- 
tional Indian input and other input. 

Mr. Taylor. I think this consultation process is extremely im- 
portant. 1 would like to relate a specific incident as to why I say that. 
After our report came out, it was reviewed by various congressional 
staff, et cetera, and I received a call from your staff, Mr. Meeds^ 
Mr. Ducheneaux, Frank Ducheneaux. Frank's comment was: "I see 
you say section 474, it is probably obsolete, consider repealing it." 
1 immediately grabbed my code and started thumbing it madly. 
I knew he had something in store for me. It is a statute that appears 
obsolete on its face. It relates to Indian treaty claims based on an 
act of 1889. In fact, he advised me I had better not come out to the 
Cheyenne River for quite a while because every child that comes of 
age, 18 years old, gets a $1,000 payment. 

So this illustrates the kind of problems that are built into these 
proposals. 1 think it is vitally important the Indian community be 
consulted on these. 

Commissioner Whitecrow. I have one question. One of the recom- 
mendations here is that a union of Indian nations be established, 
to serve as a recognized, unofficial committee of Congress. I wonder 
if this isn't set up properly, wouldn't it also not be infringing upon 
the sovereign rights of a tribe in recommending these kinds of organi- 
zational concepts? Should this not be allowed to be normal process 
by development with intertribal and tribal relationships? 

Mr. Alexander. To reiterate, we are not recommending any of 
the specific proposals. You can take that union concept and say the 
tribes let it be established perrnissively rather than mandatorily, 
and tribes, if they so seek could perform such a thing; that is the act 
of a sovereign; a sovereign can enter into agreements to share re- 
sponsibilities. 

Mr. Whitecrow. That is my point then in total, Paul. If we are 
recommending these kind of actions, perhaps it might be better if we 
would just recognize this is a possibility of development rather than 
recommending as a Commission that this come about. 

Mr. Alexander. My view is we are not going to recommend any- 
thing specific. We will lay out some of these suggestions that have been 
generated from tribal people and discuss them. We have no view. 

Mr. Meeds. Could you give us your opinion as to which of these 
recommendations, if adopted, would require constitutional amend- 
ments? It is clear to me some of them would. 

Mr. Alexander. It is like the — there are arguments that could be 
made under plenary powers about constitutional amendments. It 
is, however, the staff view that some of the major kinds of shifts 
require constitutional amendments. 

Mr. Meeds. Two or three on page 4 would clearly require constitu- 
tional amendment. 

Mr. Alexander. That could be argued and that would be pointed 
out in the staff discussion in the text of the report. 

Mr. Whitecrow. Mr. Chairman, would you mind pointing out to 
a layman which of these points on page 4 would require constitu- 
tional amendments? 



272 



Mr. Meeds. A quick reading of 2 and 3 indicate both. 

Mr. Alexander. Setting up a body of power within the U.S. 
Congress made up of elected — I am not quite sure how the election 
would be organized — representatives from Indian country, be it by 
tribe or region or what. 

Mr. Meeds. I think probably 3 under (b) would also. Are thei - 
further comments or questions? 

Mr. Whitcrow. On page 3 under recommendation (a), would that 
also require constitutional amendment? 

Mr. Alexander. To the extent we are talking about a voting 
member with full congressional power, not as I said previously 9 
nonvoting delegate which is one of the options that has been talked 
about. Those are recommendations that come from a number of task 
force reports, primarily task force 3. And in our staff recommen- 
dation we have really not adopted any specific one. There i- no 
consensus in Indian country. Some of these proposals are something 
people are just starting to think about. Some were generated by the 
task forces themselves. 

Ms. Deer. I would like to commend the staff for excellent 
work. I know they have put in many hard hours of consultation mid 
really burning the midnight oil. This means the total stall'. I think 
the alternatives and analyses and discussion that have been presented 
to us have been outstanding, and I would like to express my appre- 
ciation as a Commissioner to the entire staff and look forward to our 
next meeting with some more of your excellent staff work. 

Mr. Meeds. I, too, would like to take the opportunity to commend 
the staff. Although I have some disagreement with some of the recom- 
mendations made by the staff, I don't recall having been treated to 
better staff work. I think the staff has done a tremendous job and has 
given a very creditable performance for this Commission. 

Mr. Alexander. We thank you. I would like to point out, that you 
see generally up here the white-collar component of out staff and I 
would personally like to thank the clerical people who have just done 
an incredible job for us — all the way through. Rarely do they get the 
kind of recognition they should. They have just been terrific. 

Air. Whitecrow. Mr. Chairman, I would also like to join with the 
rest of the Commissioners in thanking the staff for an outstanding 
job and I would also like to include in that staff, every clerk, every 
stenographer, everyone who has anything to do with the Commission. 

I would also like to enter into the record the statement I read from 
the Washington Post, Tuesday, November 23, 1976, from Jack 
Anderson and Les Whit ten's column, whereby I think it is quite 
appropriate to read it here. They are talking about the past President-, 
and whereby they are indicating the Archives plans to assign 100 
workers to do the cataloging of the President's papers once the 
courts ever turn 'them loose and it will be an exhaustive chore which 
will last until about 19S1. 1 would like to state this. 

We are doing and we have clone about 300 years of research with 
this particular congressional Commission and I think we are doing 
an outstanding job of putting together a set of papers that will go 
down in history and certainly it is not going to be quite as expensive 
as this exhaustive work mentioned here that is being developed just 
to preserve the papers of one man, regardless of whether or not he; 
deserved the very top level of this Nation. He is one person. 

We are talking about millions of people. 



273 



[From the Washington Tost, Nov. 23, 1976] 

Jack Anderson and Les Whitten 

Delay Likely on* Airing Nixon Data 

The public has the mistaken impression that Jimmy Carter, once he's in-talled 
in the White House, will be able to release Richard Nixon's tapes and records. 
They contain many dark secrets, which still hang over the Nix >:i years. 

But our sources say it will take at least five years, even with favorable court 
rulings to break loose the controversial tapes and letters. Jimmy Carter will 
have little, if anything, to say about it. 

Some 900 rolls of tapes, containing the conversations of Nixon and his aides 
inside the Oval Office, remain under court seal. Another 36 million to 42 million 
pieces of paper are also locked up awaiting court action. 

Congress has already enacted special legislation, giving the government 
control of the Nixon material. But the former President has successfully tied up 
their release in the courts. 

The most sensitive papers and all the tapes, meanwhile, are stored in the 
Executive Office Building, adjoining the White House. The bulk of the material 
is kept under guard in the General Services Administration's warehouse in 
Suitland, Md. 

The Supreme Court, if it agrees with a lower court ruling, could uphold Congress 
in a few weeks. Or, the Supreme Court may ask for oral arguments and hold off a 
ruling until next year. 

Even if the Supreme Court rules against Nixon, he can file a second suit on 
constitutional grounds and start the whole process over. This would extend the 
secrecy at least until the fall of 1978. 

Once the courts clear the way, GSA is drafting regulations that would permit 
the release of almost everything contained in the tapes and papers. The Archives 
plans to assign 100 workers to do the cataloging. But this exhaustive chore would 
take until about 1981. 

Eventually, the Nixon papers and tapes will be open to the public, the courts 
willing, in 1 1 different cities. The only material that would be withheld would be 
Nixon's personal papers such as letters to his wife, military secrets, information 
that might interfere with a fair trial, documents that violate the privacy act, and 
perhaps a few other categories. 

But nothing is likely to be available during Carter's first term. 

I did want to put that into the record. Before we adjourn. Mr. 
Chairman, I would like to also read from the 10 points of what our 
historian says in regard to the concept of the work and reading from 
this book, "They Came Here First," and the last page states, and I 
think this is quite appropriate to the work of this Commission, as 
you recall in the preface of this book at the beginning of this meeting 
and we are talking about a Hopi villager and his sheep: 

The time has come to show faith in the democratic process which the nation 
avowedly practices. The Hopi speaker gave practical meaning to that avowal. 
Let him pray for the rain that would bring grass and save his sheep. If the white 
man wanted to count the sheep, that was his concern. The Hopi had a world to 
keep in order and counting sheep interfered with what he had to do. If the nation 
is ever to demonstrate the moral strength of the democratic process, it must find 
it possible to allow the Hopi villager to make his own adjustments within a chang- 
ing world society. Men born out of Europe came to power by insisting on such a 
course for themselves. The possibility of such an accommodation is within reach 
at remarkably little cost and even with some gain in honor and self respect. 
Where the Jackson era has passed, the nation has no need now to express con- 
tempt for the people whose accomplishments of the world is told briefly. The 
decision was made long ago not to exterminate the Indian people. Let the decision 
now be made to respect their right to survive in their light. 

With that I will thank the Commissioners for allowing me to be a 
little dramatic, taking a little time, and I hope to see you all bright- 
eyed and bushy-tailed about the 6th day of January. I do wish you all 
a happy Thanksgiving and a merry Christmas. 



274 



Mr. Bruce. I would like to say he needn't worry, we will endorse 
him for Secretary of Agriculture in the new Cabinet. I would like to 
also take this opportunity to express my appreeiation to the staff. 
I know what they are doing. They are always there. It seems like 
we never go home; maybe we don't. But they have been of great help 
in discussion of different items and they have always been ready to 
sit down and talk and clarify. So I want to compliment you and the 
staff for all of your efforts. 

I hope you have a good Thanksgiving. 

Mr. Borbridge. Mr. Chairman, I was going to say as I listened 
to the well deserved plaudits to the staff, that I absolutely concur. 
My encouragement would be to the effect that as we come down the 
homestretch, this high quality sensitivitv to the eoneerns of the 
Native Americans will continue. I don't want to say that we have done 
with good work at this point, but I am rather satisfied that the work 
will maintain its quality as we move down the homestretch. 

One brief point for the record. With respect to the administration 
of Public Law 93-638, at least as it has occurred in Alaska, I have 
been very much concerned with the ironic circumstances whereby in 
Alaska the Alaska Natives have had a proliferation of various local 
organizations. In the administration of Public Law 93-638, the Juneau 
area director has exercised his discretion and required that the tribal 
government body, in this instance the Central Council of Tlingit- 
Haida in Alaska, gain concurrence through various resolutions from 
the various local entities. In effect, what has occured here has been a. 
very precise erosion of the sovereignty of an established trial body. 

We here are working to honor tribal sovereignty, to recognize it and 
to define it; yet by regulations today and by interprepation through 
discretion vested in by BIA officials, we have erosion of tribal 
sovereignty occurring. 

I want to emphasize this. I understand Alaska is not the only 
place in which this has occurred. We are dealing with an ongoing 
erosion that must be stopped, not only through the promulgation of 
new laws but actually through the exercise of a very positive pressure 
on officials in a position to administer those laws to insure they will 
proceed from a positive viewpoint ; namely, a viewpoint of strength- 
ening the sovereignty of tribal government bodies. 

With that, I join all in extending best wishes for a productive and 
happy Thanksgiving. 

Mr. Meeds. The hearing is closed. 

[Whereupon, at 2:55 p.m., the meeting was adjoined, to reconvene 
January 6-7, 1977.] 



o